DUI/OUI in Kansas
Kansas does not make a distinction between driving under the influence (DUI) and operating under the influence (OUI). If you have received a driving under the influence charge (DUI or OUI) in Kansas, we strongly advise you to see an attorney within ten (10) days of coming in contact with a police officer for driving under the influence. Most often you will have received a pink piece of paper known as a DC-27 form. Most driving under the influence cases are actually two separate and distinct cases. The first is a criminal case, which proceeds in a criminal court (Municipal Court or District Court). The second case is a civil action involving your driving privileges. The civil action is an administrative proceeding brought against your driving privileges brought before the Kansas Department of Revenue. The Administrative License Hearing is full of pitfalls and time limitations that someone who is not thoroughly familiar with the law can easily miss. You must make a proper demand for a driver's license hearing within fourteen (14) days of receiving the DC-27 form. You must pay a $50 fee at the time you request an administrative hearing. We normally recommend that the request include a demand for an "in person" hearing, with the officer being subpoenaed to testify. Failure to go through this process in a timely manner will, more than likely, result in some type of driver's license suspension. Driver's license suspensions can range anywhere from thirty (30) days to one year with a subsequent restriction of driving only a motor vehicle equipped with an ignition interlock device for a period up to ten (10) years. Driving is a privilege under our law. Driving is not a right. You do not have a constitutional right to drive a vehicle.
The cold reality is that a person who has refused the breath test or took the test and failed, even on his or her first offense, may lose his or her driving privileges completely for a year. ( A harship liscense is available after 45 or 90 days in most cases) Consequently, you must do everything you can to make sure your rights are protected. The driver's license hearing process is highly technical in nature. Officers do make mistakes in the way they process cases. Those mistakes can result in someone keeping his or her license, when he or she might have otherwise lost the privilege to drive. The only way to ensure that you defend a case properly is to seek the advice of a qualified attorney as soon as possible after receiving the pink form (DC-27 form).
The laws governing driving under the influence are extremely complex. If you are arrested for driving under the influence, or given a DC-27 form, you should contact an attorney for advice immediately. The law provides for substantial consequences so we recommend against people to representing themselves. You must take action even before your court date. If you wait until your court date, you may have already lost your driving priveleges.
Kansas law regarding driving under the influence has historically changed almost every July 1. If you are charged with a criminal offense, the law that is in effect at the time that you are alleged to have violated the law is what controls. Changes to criminal statutes that are substantive cannot be retroactively applied. Since the law is constantly changing, it is very important that when you visit websites regarding driving under the influence, that you make sure the website has been updated recently. Unfortunately many attorneys maintain websites that are not updated on a regular basis. If a website, for instance, states that expungements are no longer available for driving under the influence, that website is out of date. To know the penalties for violating a DUI/OUI statute, you must look at the statute at the time of your offense. Because the State has up to five years to bring charges, the current law may not be applicable to you.
Several new laws took effect July 1, 2012 and 2013. A few changes occured in 2014. Those changes include making a refusal of a breath test for a second time a criminal offense, which has similar penalties to the offense for driving under the influence. Changes have been made to the licensing requirement regarding motorized bicycles for persons convicted of a first time DUI under K.S.A. 8-235(d). Almost everyone is eligible under a hardship license to drive to and from work on a restricted license subject to an interlock device.
Police officers will normally request a preliminary breath test where the stop of the vehicle occurs. Refusal to take these tests are an infraction. Refusal to take the intoxilizer breath test normally done after a person is arrested can be a crime if the person has refused to take the test in the past. We expect several constitution challenges to the refusal statute. Under the new law a person is forced to decide whether to take a breath test and possibly break the law without a right to consult an attorney. This seems to fly in the face of the Constitution of the United States. Nevertheless, some states have upheld similar provisions.
The Kansas Legislature has now broken down the time served in confinement for driving under the influence convictions to the number of hours a person has to serve rather than days. When people are on work release, the hours in which they are not in confinement do not count toward serving the time of the hours mandated for confinement.
In the average DUI/OUI arrest a person may take two breath tests. The two tests have very different consequences. The first request for a breath test usually involves a preliminary breath test (PBT). The PBT is a handheld device. Refusal to take a PBT is a traffic infraction the first time it happens and does not affect a person's driving privileges. The PBT is used to establish probable cause, which provides justification for the police officer to make an arrest. The second time a person is convicted for refusing a PBT could result in penalties as severe as those for a DUI conviction.
The other breath test, an Intoxilyzer 8000, is usually administered at a police station or jail, although some portable units are in use. The Intoxilyzer 8000 requires electricity and is not handheld. Refusal to take this test or taking the test and failing both leads to driving consequences and provides evidence in criminal cases. Commercial Drivers license and persons driving under the age of 21 years have special rules. If you fall into one of those categories you need to make sure you read this entire website.
If you refuse a breath test of a breath, blood, or a urine test your license is at risk for a one year suspension of driving privileges, followed by an ignition interlock requirement. The driver's license suspension is for one year regardless of how many prior Kansas DUI occurrences a person has had in the past. The length of the interlock requirement will depend on the number of prior convictions or administrative actions.
If you take a breath test with a result between .08 and .15: On the first occurrence, you risk a 30 day suspension of driving privileges followed by 6 months of ignition interlock device if you have no prior occurrences. The ignition interlock requirement is for 12 months if you have a prior MIP or Open Container conviction, if you had 3 moving violations within the previous 12 months, or if your driving privileges had otherwise been revoked, suspended, cancelled or withdrawn. The amount of time for the interlock device increases with every prior occurrence you have had.
Failure of a breath test with a result of .15 or higher on the first occurrence, or over .08 on a second or subsequent occurrence, results in a one year suspension of driving privileges, followed by an ignition interlock requirement. The length of the interlock requirement will depend on the number of prior occurrences. Anyone who is suspended for one year may obtain a restricted license to allow driving to and from school, work, and alcohol treatment after the initial 45 days of suspension for persons with a breath test failure and 90 days for those with a breath test refusal. You are not allowed to drive during the course of employment however. So, the one year suspension will actually be a 45 day or 90 day suspension so long as you are willing and able to put an interlock device in your car pursuant to the restriction on the license. The statement in this web site is the law as of July 1, 2011. If you had a DUI or OUI before July 1, 2011 different rules may apply. The new hardship license can be applied for retroactively if your license was suspended before July 1, 2011, upon application and payment of a $100 application fee. A person who currently has a suspended license may be able to get a restricted license if he or she has already served 45 days or more of his or her suspension.
You can check the status of your drivers license in Kansas and run a copy of your diving record by going to:
You can apply for a hardship license from the Kansas Department of Revenue if you have already served 45 days for a breath test failure or 90 days for a breath test refusal using this form: Hardship DL Form.
The hardship statute is K.S.A. 8-1014, After 45 or 90 days you can apply to the division for a license to drive a motor vehicle equipped with an ignition interlock device and only for the purposes of getting to and from: Work, school or an alcohol treatment program.
Diversion agreements are not what they used to be. If a driver is ever charged with another DUI, a diversion will count as a first offense, and the subsequent DUI will count as a second. Some rental car agencies ask about diversions on their applications, and some employers are requesting information about diversions. Given the trend for steeper penalties for driving under the influence convictions or diversions, it is highly advisable that a person exhaust all avenues before participating in a diversion. Not everyone charged with driving under the influence will be convicted. The prosecuting attorney must prove all elements of a driving under the influence charge beyond a reasonable doubt. Additionally, a number of technical defenses can be raised, which include among others, the legality of the stop, whether the police officer gave the implied consent advisory, and other defenses that a layperson might not know to raise in their case.
Kansas courts have held that Miranda rights do not have to be read to an individual before he or she decides whether or not to take a breath test. A common misconception among laypeople is that police officers must read Miranda rights after an arrest. This is TV fiction. Miranda must be read before the police obtain a statement from a person when the person is in police custody and being subjected to questioning. Kansas courts have held that neither breath tests nor field sobriety tests are statements. Further, there is no right to consult an attorney before making a decision of whether or not to take a breath test.
In some cases, police officers may request a person to take a blood test or obtain a search warrant to get blood from a suspect. If you take a blood test, the results will not be available immediately. Blood tests can take several months to process. The sample is sent to the Kansas Bureau of Investigation laboratory, where the blood is tested. If you have had a blood test taken, you should contact an attorney and make an appointment as soon as possible. Until you receive a pink sheet, or DC-27 form, your time to demand a hearing does not start, but you should not wait until you receive a DC-27 or pink sheet before contacting an attorney.
Expungements: As of July 1, 2014, DUIs may now be expunged after 7 years, unless you received the DUI while driving a commercial vehicle. Expungement rights normally attach at the time of conviction or diversion. If you were convicted before July 1, 2006 you may be able to expunge your conviction or diversion after 5 years.
Michael Riling, Chris Peoples and Bobbie Lee Riling handle DUI/OUI cases. Call (785) 841-4700 to set an appointment. (We do phone appointments but you will need to fax in your ticket and DC 27 before the appointment. (fax number is (785) 843-0161) We do not offer free consultations.