DUI


If you are arrested for DUI, two distinct and separate legal processes begin simultaneously:

  • The Criminal charges which can result in fines, jail time, and the suspension and restriction of your driving privileges; and

  • The Administrative Proceedings (civil-side) which can result in the suspension and restriction of your driving privileges.

The length of the suspension and/or restriction of your driving privileges resulting from the Administrative Proceedings depends upon:

  1. Whether you refused or failed the breathalyzer

  2. Whether this is your first DUI arrest or you have a prior diversion and/or convictions, or you have received a prior administrative suspension of your driving privileges; and

  3. Whether you are over or under 21 years of age at the time of the test failure or refusal.

The time of suspension of driving privileges, depending on these factors, ranges from 30 days to permanent revocation of your driver’s license. You have a right; however, to an administrative hearing in which you can challenge the grounds upon which the State of Kansas is trying to suspend or restrict your driving privileges. If you are successful at this hearing, the administrative action against your driving privileges will be dismissed.

DC-27
At the time of your arrest, the officer should have given you a pink sheet called the DC-27. As set forth on the back of that form, you must send a request for an administrative hearing to the Kansas Department of Revenue within 10 days of the day that you received the DC-27. In this request, you need to specify that your hearing be in person before a representative of the Department of Revenue. Failure to request an in-person hearing will result in the hearing being held over the telephone.

Failure to request an administrative hearing will bar you from challenging the administrative suspension of your driving privileges. If you have requested an administrative hearing, your driving privileges will continue in full force and effect until 30 days after the administrative hearing.

At this hearing, a number of issues can be raised to oppose the suspension of your driving privileges, including but not limited to:

  • Whether the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol/drugs or a combination of both

  • Whether you were given the statutorily required notices

  • Whether your actions constituted a test failure or refusal

  • Whether the testing equipment, testing procedures, and the officer operating the machine were certified/approved by the Kansas Department of Health and Environment (KDHE)

  • Whether the test result was .08 or greater

  • Whether your constitutional rights were violated

To preserve your rights and strengthen your defense, an experienced Kansas DUI attorney is highly recommended. I have been involved as either a prosecutor or defense attorney in over one thousand DUI cases.

Contact Olathe, Johnson County, Kansas DUI attorney Darrell Smith at
 (866) 607-9310.

I will aggressively defend your rights if you are accused of drunk driving and other alcohol related-offenses. I will work to:

  • Ensure your constitutional rights are upheld

  • Ensure the evidence against you is collected and preserved in a legal manner

  • Ensure that you are provided a fair trial

  • Appeal any errors committed by the court or its participants

As a member of the National Association of Criminal Defense Lawyers, I have attended National Seminars focused exclusively on this subject.

Why hire a DUI lawyer?
A DUI charge is a misdemeanor. If you plead guilty to a misdemeanor, you will have a criminal record. Some prosecutors will require you to plead to the misdemeanor if you don’t have a lawyer.

In addition, a DUI lawyer will save you money and time, and in most cases keep you from getting a criminal record. In some cases we can get you a deal where you would plead to a violation. This makes sense for some of our clients. Due to changes in Kansas DUI laws, we now advise most of our clients to fight DUI cases.

DUI charges have become a very serious matter, costing a first-time offender as much as $5000 or more in fines, surcharges, higher insurance premiums, other charges, and prospect of a criminal record. With that much at stake, it’s worth it to hire a DUI lawyer.

Potential Criminal Penalties
The Criminal aspect of a DUI includes fines, mandatory jail time, suspension of your driving privileges, and the potential impoundment of your vehicle. The amount of fine and length of the jail sentence are determined by the number of prior DUI convictions/diversions you have had during your lifetime. It no longer matters whether a prior conviction was outside of five years. Under current Kansas law, all prior DUI convictions and DUI diversions count towards enhancing (increasing) the criminal level of the DUI being charged, regardless of how long ago they occurred.

K.S.A. § 8-2,144 provides:

First Conviction: A first lifetime conviction for DUI is a Class B misdemeanor. The potential sentence is 48 hours to six months in jail, and a fine between $500 and $1,000. You must serve at least 48 hours, unless the court approves a request to perform 100 hours of community service in lieu of serving the 48 hours in jail. On the administrative side, upon a first conviction your driving privileges will be suspended for 30 days, followed by 330 days of restriction for a test failure. For a test refusal, driving privileges will be suspended for a full year. You will also be required to undergo a drug and/or alcohol evaluation and will have to complete whatever treatment is recommended by the evaluator.

Please note that the foregoing information presumes that you provided a sample of breath in excess of .08% alcohol – but less than .15% alcohol. The Kansas Legislature recently enacted significantly greater penalties for drivers who test either at or above .15%.

If you test at or above .15% for your first offense: you face suspension of your driving privileges for a full year followed by an additional year of driving a vehicle only if it is equipped with an ignition interlock device.

Second Conviction: A second lifetime conviction for DUI is a Class A misdemeanor. The potential sentence is 90 days to one year in jail, and a fine between $1,000 and $1,500. Providing that you enter into a substance abuse treatment program, you must serve at least five days in jail, but after 48 hours the judge can order that the remainder of the sentence be served on house arrest or in a work release program. Upon a second conviction, your driving privileges will be suspended for one year followed by at least one year of interlock restrictions for a test failure and driving privileges are suspended for a full two years for a test refusal.

If you test at or above .15% for your second offense: you face suspension of your driving privileges for a full year followed by an additional 2 years of driving a vehicle only if it is equipped with an ignition interlock device.

Third Conviction: A third lifetime conviction for DUI is a felony. The potential sentence is 90 days to one year in jail, and a fine between $1,500 and $2,500. After completing 48 hours in jail, the court may order that the remainder of the sentence be served on house arrest or in a work release program. Upon a third conviction, the term of suspension is the same as for a second offense for a test failure: your driving privileges will be suspended for one year followed by at least one year of interlock restrictions. For a test refusal, the term of suspension is 3 years.

If you test at or above .15% for your third offense: you face suspension of your driving privileges for a full year followed by an additional 3 years of driving a vehicle only if it is equipped with an ignition interlock device.

Fourth or Subsequent Conviction: A fourth or subsequent lifetime conviction for DUI is also a felony. Like a third conviction, there is a sentence of between 90 days and one year in jail, however the fine is a flat $2,500.00. You must serve 72 hours in jail prior to the court being able to grant work release for the balance of your sentence (house arrest is not allowed). Upon a fourth conviction, driving privileges are suspended for one year followed by at least one year of interlock restrictions for a test failure. For a test refusal, the term of suspension is 10 years. If there is a fifth conviction, driving privileges are permanently revoked regardless of whether the driver refused or failed the test.

If you test at or above .15% for your fourth offense: you face suspension of your driving privileges for a full year followed by an additional 4 years of driving a vehicle only if it is equipped with an ignition interlock device.