I have been hesitating to write about the new Kansas DUI laws which will go into effect on July 1, 2011, until I had more information about what the procedure will be for people to take advantage of them. But, I am already getting a lot of calls about it so I wanted to at least acknowledge it.
On May 26, 2011, the governor signed Senate Bill 6 which partially revamps Kansas DUI laws. Here are the hightlights:
– Refusal of a breath, blood or urine test is a one year suspension, followed by ignition interlock requirement (length of interlock is dependent on priors), regardless of how many prior Kansas DUI occurrences a person has;
– Failure of a breath test with a result between .08 and .15, on the first occurrence, is a 30 day suspension followed by 6 months of ignition interlock device if your record is clear, and 12 months of interlock if you have a prior MIP, Open Container or 3 moving violations;
– Failure of a breath test with a result over .15 the first time, or over .08 on a second or subsequent occurrence is a one year suspension followed by ignition interlock (length of interlock is dependent on priors);
– BUT, ANYONE WHO IS SUSPENDED FOR ONE YEAR MAY OBTAIN A RESTRICTED LICENSE TO ALLOW DRIVING TO AND FROM SCHOOL, WORK AND ALCOHOL TREATMENT AFTER 45 DAYS. So, the one year suspension will be a 45 day suspension as long as you are willing to put an interlock device in your car pursuant to the restriction on the license;
– THE NEW LAW CAN BE APPLIED RETROACTIVELY TO PEOPLE WHO WERE SUSPENDED BEFORE JULY 1, 2011, UPON APPLICATION AND PAYMENT OF A $100.00 APPLICATION FEE. So, people who are currently suspended may be able to get the restricted license if they have already served 45 days or more of their suspension;
– There will be a $50.00 fee to request an administrative hearing after July 1, 2011 (why shouldn’t you pay the government for the privilege of a hearing before it takes your property?);
– The minimum fines on all Kansas DUI convictions are going up by $250.00 (so, a first is $750, a 2nd is $1,250);
– Apparently, there is no longer a residential treatment option as opposed to jail for 2nd and subsequent DUI’s, and a 2nd conviction requires a minimum of 48 hours in jail plus either 72 hours in work release (excluding the hours the person is working) or 120 hours on house arrest (excluding the hours the person is working);
– A 3rd time DUI in Kansas will be a misdemeanor if there have been no prior DUI convictions in the last 10 years. The minimum sentence for a 3rd time misdemeanor DUI is $1,750 fine, 48 hours in jail followed by 192 hours of work release (excluding the hours spent at work) or house arrest with a G.P.S. for 240 hours excluding the time the person is allowed out of the house;
– A 3rd time DUI with a prior within 10 years is a felony but the minimum punishment is the same as for a 3rd time misdemeanor;
– A 4th time Kansas DUI will be a felony with a minimum $2,500 fine, 72 hours in jail followed by 168 hours of work release (excluding hours spent at work) or 240 hours of house arrest with G.P.S.(excluding hours allowed out of the house);
– DUI CONVICTIONS AND DIVERSIONS PRIOR TO JULY 1, 2001 DO NOT COUNT AS PRIOR CONVICTIONS IN DETERMINING WHETHER A DUI CONVICTION IS A FIRST, SECOND, ETC. CONVICTION. So, a person who gets convicted of a DUI occurring after July 1, 2011, and who has one prior DUI from 1999, could only be convicted of a first time DUI.
– A DUI may be expunged after 10 years
So, it is all a little more complicated than I have made it sound above, but I think I have boiled it down fairly accurately. What remains to be seen is what the Kansas Department of Revenue will require in terms of applying for retroactive application of the laws to old suspensions, and what will have to be done to get the interlock restriction after 45 days of suspension. I have not seen the forms for making these requests or heard how it is going to work, or how long it is going to take to process the avalanche of applications they are about to get. Once I figure that out I will try to post something.
Thank you so much. You are one of the few people who knows what the new law says. I appreciate your clearing things up!
For folks who are now serving a suspension and apply to come under the new law would a DUI prior to 2001 then not count and will they reconfigure a persons suspension accordingly to one offense?
I hope that the Kansas Dept. Of Revenue works something out to make all of this doable. If you try calling them no one ever answers, nor do they ever answer their email!
Thank you again Jay Norton for your sharing your insights on the new DUI bill!
I have been trying to reach the Kansas department of Revenue for days now with no luck. Maybe you could help with my question. My dad got a dui, and with the old lifetime law he was charged as a felon. He had two previous dui's over twenty five years ago. I guess my question is, will they go back and take the felony off for him?
Thank you…
I do have another question.. Is the law going to be retro active or not. I cant see where it states either way for dui conviction. Also CONVICTION is that when your court date is or is it back when you were arrested for dui? If someone had a dui in 1999 and another in 2003 and the last in 2010 that still has not had a court date for.. with this new law will it make the 1999 not count and now be charged for the 2nd count.
That only seems right since when they changed the law in 2001 it was retroactive so this should be too.
I fall under the 1st offense and am in the process of applying for a hardship licence now. Any idea how long this will take? Thanks for your post and accurate information about the new bill.
What if a person receives a ticket that reads "pbt refusal" but there is no mention of DUI on the ticket nor an arrest made on the person who refused?
Thank you, very much, for making this post. It amazes me that a citizen of this country must spend years in school, or in a library, just to understand their constitutional rights.
If a person does not receive a DUI/OWI nor is arrested, but receives a ticket that states "pbt refusal," is that still the same as being arrested for DUI AND refusing to submit to a pbt?
my charges were dismissed for improper procedure, and lack of evidence (officer failed to appear in district court twice). but he appeared at the DMV hearing, and of course that is all it took for a suspension. this occurred last Sept., and I filed the requested form along with a $100 reinstatement fee three weeks ago. My 45 day suspension was up the middle of June, so I am now approaching 90 days. I called the DMV last week for an update…it took 4 hours to get to a person who was curt and rude, saying that they only had 2 people trained to process the forms and it could take weeks, but regardless, "the money is ours." I said, "I understand clearly it is a non-refundable check, but I just wanted to verify the status," She continued to be uninformative and rude. I thanked her for her time and hung up. What is the point of the new law if they are going to take forever to do the processing? It took 8 months to dismiss, and I have a feeling it will take the remainder of a year for a reinstatement IF they chose to do so…which is what the woman said they could do. A maybe, maybe not choice based on one of two people who do the processing? Did someone get the cart before the horse on this one?
my question is also will they take the felony off? Same situation as the 2 dui's from 20 plus years ago, a third in 2006, was a felony conviction. expungement at that time was not available. what will the process be to remove the felony charge and costs, as well.
The form is available at this address:
http://www.ksrevenue.org/pdf/dc1014.pdf
The question becomes is the law applied retroactively on date of charge v. application.
I can't give people who are not my client legal advice, so it is hard for me to answer a lot of the questions here. A PBT Refusal is not the same as a DUI, it is a non-moving traffic infraction with the only penalty being a fine.
Whether the new Kansas DUI law will be applied retroactively remains to be seen. There is certainly a good argument for doing so. But, it is an issue that will have to go up to the appellate courts and will probably take a couple of years to resolve.
I have had several clients apply for the restricted license under the new law and I am not aware of anyone receiving the license yet. So, obviously it is going to take the Department of Revenue awhile to process all of the applications and no one knows how long the process will take. I would assume that people will begin receiving their letters in the next week or two.
Hi Jay,
Sorry to ask you another question but I thought it would applicable enough to others that you may respond so here it goes:
Are you familiar with governors pardoning those who opt for a diversion of a DUI charge? Would this be a matter of public record? Could it be done before the hearing even occurs?
I know you get paid to do this stuff but you are very good at it so I'm grateful for any response. Thanks.
-John
I have never heard of the governor granting a pardon of any person from a diversion or conviction for DUI. Governor pardons are extremely rare for any class of offense, but I would be willing to bet it has never happened with respect to a Kansas DUI.
I received a DUI June 15, 2011. Shouldn't I get the 30 day suspension and the 330 days restricted? Who would I contact about this? They're trying to make me abide by this new law, that wasn't even in effect when I was charged.
I was suspended administratively today in Wyandotte County, Kansas.I will also be subject to 330 restriction. I am currently completing my diversion. Am I able to obtain a class C license for a moped? Will I be able to drive anywhere on the restrtiction if I am on the moped?
How does this new law effect someone who had a DUI 25 years ago, and had a new one last year, after July 1st? If this person received a diversion on the first one, are they now inelligible for diversion this second time? Even though the DUI’s are 25 years apart?
Whether someone is eligible for diversion is totally up to the prosecutor, and different jurisdictions are handling this differently. In general, you only get diversion for a Kansas DUI once in your lifetime. You need to talk to a lawyer about your specific situation.
Can you do me any good?????
I got my second DUI 3 months ago. My first was in 1995. The court counted it as my first, but Kansas Driver Control counted it as my second and gave me a year suspended and the an additional year restricted. Why? The law stated it will count as my first DUI as my last was 18 years ago. Makes me so mad!!