Kansas DUI Law
Please Note: ALTHOUGH THE FOLLOWING KANSAS SUPREME AND APPELLATE COURT OPINIONS ARE RECENT HOLDINGS, THEY ARE NOT NECESSARILY CONTROLLING LAW. THEY ARE LISTED HERE MERELY TO GIVE THE READER AN IDEA OF HOW KANSAS COURTS HAVE RULED IN PAST DECISIONS. IT IS THEREFORE IMPORTANT THAT ONE NOT BASE FUTURE ACTION ON THE HOLDINGS IN THESE OPINIONS WITHOUT FIRST CONSULTING AN ATTORNEY DULY LICENSED IN YOUR JURISDICTION.
ADMINISTRATIVE HEARINGS (YET ANOTHER TAX ASSESSED FOR EXERCIZING YOUR CONSTITUTIONAL RIGHTS!)
The most damaging aspect of DUI law, especially for a first-time offender, is the impact on the driver’s driving privileges. To help mitigate this, anyone arrested for a DUI has the right to state their case in front of a hearing officer. Before July 1, 2011, all a driver need do was fax or mail a hearing request to the Kansas Department of Revenue within 14 days of arrest (better to fax since it produces a confirmation report) to secure his right to a hearing on the suspension. It’s no longer that easy. Now, not only must a driver timely file a request, but he must send in a $50.00 hearing fee. Curiously, the language of the statute still only requires a filing within 14 days as a prerequisite to setting a hearing, with the KDOR charged with collecting a fee before the hearing takes place. However, the KDOR has adopted its own policy of denying any request if the fee isn’t received by day 17. I am appealing one such denial, so we may have a clear answer as to whether these illegal hearing denials will stand.
If you come in to our office for a free initial consultation, we will take care of this request at no charge to you, except, of course, for the hearing fee which you’ll need to send in if you don’t retain us to represent you.
Unlimited Lookback (sort of)
This previously absurd aspect of Kansas DUI law has been modified slightly. Although charging authorities will still look back on your entire lifetime of DUI diversions and convictions, for a third they will only go back ten years for felony charging. Hence, if your first was 11 years ago, your third is a Class A misdemeanor. However, you will still face felony penalties. See below for those.
This 10 year lookback doesn’t apply for a 4th or more. Those will still be treated as the statute states for 4th or subsequent DUIs notwithstanding the above.
Jail Time (IF YOU CAN’T DO THE TIME, DON’T DO THE CRIME!)
One who is convicted of driving under the influence will spend time in confinement. Whether the case is a first, second, third, or fourth lifetime DUI will determine how long and in what form that confinement occurs. Moreover, a defendant's attitude as relates to his willingness to admit the existence of an alcohol or chemical dependency problem will play a huge role in determining whether a Court will find the statutory minimums appropriate (i.e., whether a defendant serves 48 hours in jail or up to one year, depending on the classification).
Following are the statutory minimums for BAC at or below .08, as well as DUI refusals, though a judge can impose jail time in excess of these periods of time:
Class B misdemeanor (first time DUI): 48 hours jail, or, in the Court’s discretion, 100 hours community service (Courts never do this, and few defendants who are granted community service are able to complete it, so go with the 48 hours. There is a non-jail alternative available in some communities, the Weekend Intervention Program, which takes place in a hotel);
Class A misdemeanor (second time DUI): 5 days incarceration total, 48 hours consecutive; technically, there is a minimum of 90 days jail, but probation may be granted after 5 days is served, with 48 hours jail followed by House Arrest or Work Release;
Third-lifetime Class A Misdemeanor: 90 days incarceration total, a minimum of 48 hours consecutive in county jail with the balance in work release or house arrest if the court deems it appropriate;
Third-lifetime, non-person felony: 90 days incarceration total, a minimum of 48 hours consecutive in county jail with the balance in work release or house arrest if the court deems it appropriate;
Non-Person felony (fourth or more DUI): 90 days incarceration, a minimum of 72 hours consecutive in county jail with the balance in work release if the court deems it appropriate; must be monitored by the Kansas Dept. of Corrections upon release.
Again, these are the minimums. If the court finds that the facts and circumstances of a particular case justify more than the minimums, a defendant could serve up to 6 months for a Class B, or 1 year for all remaining classifications.
Fines* (CRIME PAYS…THE STATE OF KANSAS!)
Class B misdemeanor: $750.00
Class A misdemeanor: $1,250.00
First felony (third total DUI): $1,750.00
Second or more felony (fourth or more DUI): $2,500.00
* A defendant will also be subject to court costs and additional fees for the Alcohol & Drug Safety Action Program (ADSAP) and other programs the Court deems appropriate, such as a DUI Victims' Panel. Moreover, if defense counsel is appointed or a public defender assigned, the Court will probably assess fees sufficient to cover the costs of such representation.
Drivers License Suspension and/or Restriction
Kansas law provides for drivers license (D.L.) suspension and restrictions depending on whether a suspect submits to a breath or blood test, fails a breath or blood test, or refuses a breath or blood test. As with the above-listed penalties, the length of suspension and period of restriction varies depending on a defendant's prior behavior. NOTE COLUMN 4, GREATER THAN .15 BAC, WHICH TOOK EFFECT JULY 1, 2007.
Suspect's Action |
Refusal |
Failure to .15 bac |
failure over .15 bac |
1st Time |
1 year suspension followed by 1 year with an ignition interlock. |
30 day suspension followed by 6 months to 1 year with an ignition interlock. |
1 year suspension followed by 1-year ignition interlock requirement. |
2nd Time |
1 year suspension followed by 2 year interlock without restrictions |
1 year suspension followed by 1-year ignition interlock requirement. |
1 year suspension followed by 2-year ignition interlock requirement. |
3rd Time |
1 year suspension followed by 3 year interlock without restrictions |
1 year suspension followed by 1-year ignition interlock requirement. |
1 year suspension followed by 3-year ignition interlock requirement. |
4th Time |
1 year suspension followed by 4 year interlock without restriction. |
1 year suspension followed by 1-year ignition interlock requirement. |
1 year suspension followed by 4-year ignition interlock requirement. |
5th Time |
1 year suspension followed by 10 year interlock without restrictions. |
1 year suspension followed by 10 year interlock without restrictions. |
1 year suspension followed by 10 year interlock without restrictions. |
For ALL 1-year suspensions, driver may apply for an ignition interlock with restrictions license to take effect on day 46. For balance of this suspension period, driver may only drive a car with an interlock device to and from work, school, or treatment, and may not drive any vehicles, work or otherwise, unless equipped with an interlock device. Please note these restrictions. Your privileges are drastically curtailed compared to a regular restricted license. Also, there is no work vehicle exception. A $100.00 fee must be remitted with the application. See www.ksrevenue.org for the form and further details. As of August 9, 2011, there was a link on this page which directs you to the form.
For CDL license holders, there is a whole different set of suspensions, beginning with 1-year for a first time breath test failure, to lifetime suspension of your CDL following a first, with no interlock provisions for commercial vehicles. Also, DUI penalties begin for CDL holders when they blow or test over .04 BAC. Because of the serious impact of DUIs on CDL holders, such restrictions are not listed on this site. CDL holders should talk to an attorney.
Additional Provisions
MINOR UNDER 14 YEARS OF AGE IN VEHICLE. If the DUI occurs when a child 14 years or younger is in the vehicle, the Court must assess an additional 30 days incarceration per child, depending on how many child endangerment charges the defendant is adjudicated guilty on committing (or pleads guilty to). The Court has the discretion to order the defendant to serve this portion of confinement in jail, work release or house arrest.
MINOR WITH BAC OF .02 OR MORE BUT LESS THAN .08. This is no longer a criminal statute. It only carries a DL suspension for the minor. If a prosecutor tries to get you to plea to this bogus charge, make sure you talk to an attorney first. You may actually be pleading to a DUI which will carry with it long-term repercussions.
The above is merely a summary of the most notable aspects of Kansas DUI Law. If you have specific questions about Kansas DUI law as applied to your specific case, or need legal representation for defending against a DUI charge, call Kevin at 1-866-4-ACE LAW, or e-mail him at 4acelaw@sbcglobal.net.