Kansas DUI Criminal Penalties


	CRIMINAL JUSTICE

GENERALLY: This section deals only with the criminal case and does not address the civil or administrative action against your driver's license. Further, this section deals only with the judicial penalties for the criminal offense of DUI. There are many non-judicial penalties that will follow a no contest plea, guilty plea, or conviction for a DUI. These include increased insurance costs, problems renting cars, and job-barriers. The non-judicial penalties will be addressed in a separate section, as well.

TWO TYPES OF DUI: As discussed earlier, there are two separate ways for the prosecutor to prove a DUI case:

(1) By proving that the defendant was a less safe driver due to impairment by alcohol and/or drugs (including prescription or non-prescription drugs) by using the officer's observations, including manner of driving, field sobriety tests, the smell of alcohol, etc.

(2) By proving that the defendant was driving a vehicle at a time when his blood alcohol level was .08 or greater. The prosecutor must prove beyond a reasonable doubt that the test the defendant was given was a valid test and administered properly, and that he was driving within two hours of the test.

The second type of DUI requires a blood, breath or urine test. In a refusal case, the prosecutor has no choice but to pursue the first type of "traditional" DUI case.

SPECIAL NOTICE FOR MINORS: Kansas has a "zero tolerance" law pertaining to minors. It is illegal for a person under the age of 21 to operate a vehicle with a blood alcohol of .02 or more. If you are under the age of 21 and you submit to a breath, blood or urine test and your alcohol concentration is determined to be .08 or greater, your driving privileges may be suspended for one year. If you are under the age of 21 and test between .02 and .08 you may be suspended for 30 days and restricted thereafter for 330 days on the first occurrence and one year on the second occurrence. If you refuse a test, your driving privileges may be suspended for one year. If a minor enters into a diversion program, his or her driving privileges will be suspended for the length of the diversion (usually 12 months). Also, juveniles between the ages of 14 and 18 will be tried as adults for traffic offenses.

SPECIAL NOTICE FOR COMMERCIAL DRIVERS: The legal limit for a commercial driver is .04. A commercial driver is someone in the transportation industry (truck drivers, bus drivers, etc.) who have a commercial driver=s license. There are many special laws that apply only to commercial drivers. Those issues will not be discussed in this book but should be explored at length with your attorney.

PRIOR RECORD: The penalties for a DUI conviction depend on your prior record of driving under the influence of alcohol or drugs. Kansas used to only consider your record for the past five years, but as of July 1, 2001, any DUI convictions or diversions in a person's entire lifetime can and will be considered. So, if you had a DUI in 1985 and you get one in 2001, the latest will be considered a 2^nd time DUI and the enhanced penalties will apply.

DIVERSIONS: Before we talk about the penalties of conviction it is necessary that we look at diversion. Diversion is an option by which the defendant admits guilt, but is not formally convicted. Whether a person is granted diversion or not is up to the prosecutor. Diversion is an agreement or contract between the defendant and the prosecutor in which the defendant agrees to accept responsibility for the crime, agrees not to violate any laws for one year, not to drink alcohol for one year, not to go to places that serve alcohol except sporting events and restaurants, and to take random urine samples to insure compliance. The defendant must also attend at least an eight hour alcohol education class, a two hour DUI Victims Panel, and do anything else requested by his alcohol counselor or diversion coordinator. The prosecutor agrees that, if the defendant holds up her end of the bargain, the charges will be dismissed after a year.

A diversion does not result in a criminal suspension of driving privileges for those people over the age of 21. However, one could still have his driving privileges suspended in the administrative (civil) proceedings. Diversion is considered a "conviction" should the person get a subsequent DUI in his or her lifetime. Diversion may be denied to anyone who has had a prior conviction or diversion for anything, that tested at over a .20 on the breath or blood test, or that was particularly rude or aggressive toward the arresting officer. Also, you cannot get diversion if you were involved in an accident that resulted in an injury to any person, including yourself!

CONVICTION: A person that pleads no contest, pleads guilty or is convicted at trial is subject to the following judicial penalties:

DUI FIRST OFFENSE: Conviction of a first DUI is a Class B misdemeanor.

JAIL: 48 consecutive hours up to a maximum six (6) months imprisonment, or, in the court's discretion, 100 hours of community service. Some jurisdictions may let a defendant spend the mandatory 48 hours jail time in an alcohol treatment facility like Charter Hospital.

FINE: $500.00 to $1,000.00, plus there is a $150.00 ADSAP fee that goes to the state. Court costs may also be between $10.00 and $100.00.

PROBATION: Probation is an option only after you have served at least 48 hours. The terms of probation are just like the terms of diversion: no drinking, do not break the law, go to alcohol school, etc.

SUSPENSION OF DRIVING PRIVILEGES: A criminal conviction of a first time DUI results in a 30 day suspension of driving privileges and 330 day restriction to driving only to and from work, in the course of employment, or to school. There are no hardships or exemptions available. This suspension goes on the person's driving record.

DUI SECOND OFFENSE: Conviction of a second DUI in a lifetime is a Class A misdemeanor.

JAIL: a minimum of 90 days up to a maximum of one year.

FINE: $1,000.00 to $1,500.00, plus the $150.00 ADSAP fee, and court costs of between $10.00 and $100.00.

PROBATION: Only after a person has served a mandatory minimum of five days incarceration are they eligible for probation. Two of the days of imprisonment must be consecutively served in a jail facility. The other three days may be served in a work release program in which the inmate returns to work each night, or on house arrest. In some jurisdictions the two days of jail time can be served in an inpatient alcohol treatment facility like the Community Weekend Intervention Program in Johnson County. The terms of probation are standard: no breaking the law, no drinking, no going to places where alcohol is served, attend an eight hour alcohol school, etc. Court ordered AA meetings, outpatient treatment, or inpatient treatment programs are also a possibility.

SUSPENSION OF DRIVER'S LICENSE: A criminal conviction of a second time DUI results in a one year suspension of driving privileges, followed by one year of driving restricted to only operating a motor vehicle equipped with an ignition interlock device (you have to blow into it before your car will start). There is no hardship or exemptions available. This suspension goes on the person's driving record.

DUI THIRD OFFENSE: Conviction of three DUI's in a lifetime is a FELONY.

JAIL: a minimum of 90 days and up to a maximum of one year.

FINE: $1,500.00 up to $2,500.00, plus the ADSAP fee of $150.00, court costs of between $10.00 to $100.00.

PROBATION: No person can get probation until after he has served at least 90 days in custody. Eighty-eight (88) of the days of incarceration may be served in a work release program where the inmate comes back to the jail each night after work, or on house arrest. Inpatient treatment in lieu of jail time is generally not available for a third time offender.

SUSPENSION OF DRIVING PRIVILEGES: Upon a third criminal conviction for DUI, the defendant's driver's license is suspended for one year, followed by one year of driving restricted to only operating a motor vehicle equipped with an ignition interlock device (you have to blow into it before your car will start). These suspensions go on the person's driving record. Further, habitual violator proceedings may be instituted by the Department of revenue to revoke the defendant's driver's license for three years.

DUI FOURTH OFFENSE: Conviction of four or more DUI's in a lifetime is also a felony.

JAIL: a minimum of 90 days and up to a maximum of one year.

FINE: $2,500.00, plus the ADSAP fee of $150.00, court costs of between $10.00 to $100.00.

PROBATION: After a minimum of 72 hours in jail, the person is released to the Kansas Secretary of Corrections and must participate in a drug and alcohol treatment program administered by the Department of Corrections. After completion of the program, the person is subjected to a one year post release supervision program the terms of which may be dictated by the Kansas Parole Board.

SUSPENSION OF DRIVING PRIVILEGES: Upon a fourth or subsequent criminal conviction for DUI, the defendant's driver's license is suspended for one year, followed by one year of driving restricted to only operating a motor vehicle equipped with an ignition interlock device (you have to blow into it before your car will start). These suspensions go on the person's driving record. Further, habitual violator proceedings may be instituted by the Department of revenue to revoke the defendant's driver's license for three years.

DUI FIFTH OR SUBSEQUENT OFFENSE: Conviction of five or more DUI's in a lifetime is a felony.

JAIL: a minimum of 90 days and up to a maximum of one year.

FINE: $2,500.00, plus the ADSAP fee of $150.00, court costs of between $10.00 to $100.00.

SUSPENSION OF DRIVING PRIVILEGES: Upon a fifth criminal conviction for DUI, the defendant's driver's license is suspended FOREVER. In other words, you can never get another driver's license for the rest of your life.

PLEA BARGAINING: Plea bargaining on DUI's is prohibited by law.

EXPUNGEMENT : Expungement is the process whereby convictions are removed from a person's criminal record. A DUI may not be expunged from a person's record until five years have passed since the person was discharged from probation. A diversion may never be expunged from a person's record. Further, the F.B.I. and K.B.I. will always have a record of any and all convictions.


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