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 a Kansas 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. Finally, this section does not cover the separate crime of Refusal of a Test, which is an additional offense which may be charged against a person in the event that they do not submit to a breath, blood or urine test when requested to do so by law enforcement. The crime of Refusal of a Test in Kansas carries the same or harsher penalties than a Kansas DUI conviction.
TWO TYPES OF DUI: As discussed earlier, there are two separate ways for the prosecutor to prove a Kansas DUI case:
1. By proving that the defendant was a incapable of safely driving due to intoxication 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 three 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 drive a vehicle with a blood alcohol of .02 or more. 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. A minor that has a test result of .08 or greater faces a suspension of 30 days followed by 6 months of restriction to only driving a car equipped with an interlock device. If a minor takes a test and is over a .150, their license is suspended for one year and then restricted for a year to driving only with an ignition interlock device in their vehicle. If you refuse a test, your driving privileges may be suspended for one year. Also, juveniles between the ages of 14 and 18 will be tried as adults for traffic offenses and will not be prosecuted in juvenile court.
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 has a commercial driver’s license. There are many special laws that apply only to commercial drivers. Those issues will not be discussed in this post but should be explored at length with your attorney
If a person who holds a CDL is convicted of a DUI in Kansas or is suspended administratively for a test failure or refusal, the driver will lose his CDL for one year on the first occurrence and LIFETIME on the second occurrence. This applies even if the person was driving his OWN non-commercial vehicle and was not working when arrested. Also, CDL holders are not eligible for diversion in Kansas.
PRIOR RECORD: The penalties for a Kansas DUI conviction depend on your prior record of driving under the influence of alcohol or drugs. Any DUI convictions or diversions since July 2001 can and will be considered. So, if you had a DUI in 2004 and you get one in 2014, the latest will be considered a 2nd 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 stipulates to his 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. However, one could still have his driving privileges suspended in the administrative (civil) proceedings. Diversion does not result in a conviction, but is considered a “conviction” in Kansas 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 had a high 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: The penalties for a Kansas DUI conviction depend on prior records of driving under the influence of alcohol or drugs. Any DUI convictions or diversions since July 1, 2001, can and will be considered and used to enhance a sentence if there is a DUI conviction. Therefore, if you had a DUI in 2004 and you get another in 2013, the latest will be considered a second-time DUI and the enhanced penalties will apply. Every DUI conviction in Kansas requires a jail sentence. A person that pleads no contest, pleads guilty or is convicted at trial of the charge of DUI in Kansas is subject to the following judicial penalties:
DUI FIRST OFFENSE: Conviction of a first Kansas DUI is a Class B misdemeanor.
JAIL: A minimum of 90 days up to a maximum six (6) months imprisonment, or, in the court’s discretion, 100 hours of community service.
FINE: $750.00 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 $150.00.
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. In addition, in the court’s discretion, the court may order that the defendant’s car be impounded. So, a first time DUI conviction in Kansas will require you to go to jail or a treatment program for 2 days before you can be put on probation.
SUSPENSION OF DRIVING PRIVILEGES: A criminal conviction of a first time DUI for a person who submitted a test result under a .150 results in a 30 day suspension of driving privileges and 6 month restriction to driving only with an ignition interlock device if their driving record is clear, or a 12 month restriction to only driving with an interlock device if they have a prior conviction for Minor in Possession/Consumption, Transporting an Open Container, or three or more moving violations within the previous year. If the breath test is over .150, driving privileges are suspended for a year, followed by an additional year of only operating a vehicle equipped with an ignition interlock device. However, after 45 days of suspension the driver can apply for a restricted license that would allow driving to and from work with an ignition interlock device installed. In the event of a test refusal, the driver is suspended for a year followed by at least one year of ignition interlock, but the driver can apply for the restricted license to allow driving with an ignition interlock under certain conditions after being suspended for 90 days. This suspension goes on the person’s driving record.
DUI SECOND OFFENSE: Conviction of a second Kansas DUI in a lifetime is a Class A misdemeanor.
JAIL: a minimum of 90 days up to a maximum of one year.
FINE: $1,250.00 to $1,750.00, 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 of incarceration are they eligible for probation. Two of the days of imprisonment must be consecutively served in a jail facility or weekend treatment program. The other three days may be served either by spending 72 hours in a Work Release program (excluding the hours spent at work) or 120 hours of House Arrest (excluding any time spent outside of the house for work, etc.). The terms of probation are standard: no breaking the law, no drinking, no going to places where alcohol is served, etc. Court ordered AA meetings, outpatient treatment, or inpatient treatment programs are also a possibility. So, the bottom line is for a 2nd time DUI conviction in Kansas you have to spend 2 days in jail or a program, and do several days of house arrest before you can be put on probation.
SUSPENSION OF DRIVER’S LICENSE: If a defendant tests at less than .150, 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. If the test is .150 or higher, a conviction for DUI will mean that their license is suspended for one year followed by 2 years of driving only a vehicle with an ignition interlock device. However, the driver may apply for a restricted license after 45 days which would allow him or her to drive to or from work with an ignition interlock device installed. In the event of a test refusal, the driver is suspended for a year followed by at least two years of ignition interlock, but the driver can apply for the restricted license to allow driving with an ignition interlock under certain conditions after being suspended for 90 days. This suspension goes on the person’s driving record. This suspension goes on the person’s driving record.
DUI THIRD OFFENSE: Conviction of three DUI’s in a lifetime is a FELONY in Kansas if there has been a diversion or conviction for a DUI within the previous 10 years. If there has not been a DUI within the preceding 10 years it is a Class A misdemeanor.
3rd Time Misdemeanor:
JAIL: a minimum of 90 days and up to a maximum of one year.
FINE: $1,750.00 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. After 48 hours in jail, the remainder of the incarceration may be spent by doing 192 hours in a work release program where the inmate comes back to the jail each night after work, or on house arrest (excluding the hours spent at work), or 240 hours on House Arrest monitoring with GPS (excluding the hours spent out of the house).
SUSPENSION OF DRIVING PRIVILEGES: Upon a third criminal conviction for a Kansas DUI, a person who took a test and was under a .150 will be 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). If the person tested at a .150 or higher he will be suspended for one year, followed by a three year restriction to only driving with an ignition interlock device. However, the driver may apply for a restricted license after 45 days which would allow him or her to drive to or from work with an ignition interlock device installed. In the event of a test refusal, the driver is suspended for a year followed by at least three years of ignition interlock, but the driver can apply for the restricted license to allow driving with an ignition interlock under certain conditions after being suspended for 90 days. This suspension goes on the person’s driving record. 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.
3rd Time Felony:
JAIL: a minimum of 90 days and up to a maximum of one year in jail for a felony DUI in Kansas.
FINE: $1,750.00 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. After 48 hours in jail, the remainder of the incarceration may be spent by doing 192 hours in a work release program where the inmate comes back to the jail each night after work, or on house arrest (excluding the hours spent at work), or 240 hours on House Arrest monitoring with GPS (excluding the hours spent out of the house).
SUSPENSION OF DRIVING PRIVILEGES: Upon a third criminal conviction for DUI in Kansas, a person who took a test and was under a .150 will be 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). If the person tested at a .150 or higher, he will be suspended for one year, followed by a three year restriction to only driving with an ignition interlock device. However, the driver may apply for a restricted license after 45 days which would allow him or her to drive to or from work with an ignition interlock device installed. . In the event of a test refusal, the driver is suspended for a year followed by at least three years of ignition interlock, but the driver can apply for the restricted license to allow driving with an ignition interlock under certain conditions after being suspended for 90 days. This suspension goes on the person’s driving record. 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 a felony in Kansas.
JAIL: After a minimum of 90 days in jail 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: No person can get probation until after he has served at least 90 days in custody. After 72 hours in jail, the remainder of the incarceration may be spent by doing 168 hours in a work release program where the inmate comes back to the jail each night after work, or on house arrest (excluding the hours spent at work), or 240 hours on House Arrest monitoring with GPS (excluding the hours spent out of the house). After serving the term of incarceration, the person must be placed on one year of supervision during which the person must participate in substance abuse treatment and any mental health treatment recommended by SRS.
The court may order that the term of imprisonment be served in a state facility in the custody of the Kansas Department of Corrections (i.e., state prison) for the purposes of participating in substance abuse treatment.
SUSPENSION OF DRIVING PRIVILEGES: Upon a fourth or subsequent criminal conviction for DUI, for those people who took a test and were under a .150, 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. Persons who tested at .150 or higher will be suspended for one year and then restricted to only driving vehicles equipped with an ignition interlock device for four years. However, the driver may apply for a restricted license after 45 days which would allow him or her to drive to or from work with an ignition interlock device installed. . In the event of a test refusal, the driver is suspended for a year followed by at least three years of ignition interlock, but the driver can apply for the restricted license to allow driving with an ignition interlock under certain conditions after being suspended for 90 days. This suspension goes on the person’s driving record. 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: After a minimum of 90 days in jail 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: No person can get probation until after he has served at least 90 days in custody. After 72 hours in jail, the remainder of the incarceration may be spent by doing 168 hours in a work release program where the inmate comes back to the jail each night after work, or on house arrest (excluding the hours spent at work), or 240 hours on House Arrest monitoring with GPS (excluding the hours spent out of the house). After serving the term of incarceration, the person must be placed on one year of supervision during which the person must participate in substance abuse treatment and any mental health treatment recommended by SRS.
The court may order that the term of imprisonment be served in a state facility in the custody of the Kansas Department of Corrections (i.e., state prison) for the purposes of participating in substance abuse treatment.
SUSPENSION OF DRIVING PRIVILEGES: Upon a fourth or subsequent criminal conviction for DUI, for those people who took a test and were under a .150, the defendant’s driver’s license is suspended for one year, followed by ten years of driving restricted to only operating a motor vehicle equipped with an ignition interlock device. Persons who tested at .150 or higher will be suspended for one year and then restricted to only driving vehicles equipped with an ignition interlock device for ten years. However, the driver may apply for a restricted license after 45 days which would allow him or her to drive to or from work with an ignition interlock device installed. In the event of a test refusal, the driver is suspended for a year followed by at least three years of ignition interlock, but the driver can apply for the restricted license to allow driving with an ignition interlock under certain conditions after being suspended for 90 days. This suspension goes on the person’s driving record. 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.
PLEA BARGAINING: Plea bargaining on DUI’s to avoid the mandatory minimum penalties is prohibited by law in Kansas.
EXPUNGEMENT: Expungement is the process whereby convictions are removed from a person’s criminal record. A person who was convicted or diverted for a Kansas DUI may petition for expungement of the incident from his or her record 10 years after being released from diversion, probation, parole or otherwise completing a sentence.