As discussed previously, there are two separate proceedings initiated when a person is cited for a DUI in Kansas. At the same time that a person is being prosecuted criminally, a civil administrative suit is brought by the Kansas Department of Revenue against his or her driver’s license. Neither case has any bearing on the other.
After a person has been read the implied consent notice, been tested, or refused the test, the police officer will keep his or her plastic driver’s license. He must serve the person with a pink form that has been properly filled out by the officer. This form, titled “Officer’s Certification and Notice of Suspension, but commonly called a DC-27, will serve as the person’s driver’s license during the pendency of the administrative suit.
On the pink form, in the fine print, are instructions informing drivers that they must make a written request for a hearing concerning their driving privileges within 14 days. If the driver fails to make a written request within the 14 day limit, or doesn’t make the request properly, his license will be automatically suspended by the Department of Revenue. If the driver, or his attorney, does request a hearing, the driver will be given what is called an Administrative Hearing. This hearing will be conducted by telephone unless the driver or his attorney requests a face to face hearing. The request must also request that the certifying officer(s) be subpoenaed to the hearing or else the Department will not require that officers’ appearance and the driver will lose virtually any opportunity to prevail at the administrative hearing.
American Due Process provides that before the government can take away your property, you must be given an administrative hearing to determine whether that taking is lawful. Of course, you have to make a request for that hearing to get one. When the Department of Revenue receives this request, they will send notice to the driver and/or his attorney that they have received it. The driver’s privileges will be extended until the date of the hearing. Usually, about three to six weeks after the request is mailed in, the driver and/or his attorney will receive notice of the hearing date and time. The hearing date is chosen by the Department and generally cannot be changed, moved or continued without good cause. The Department will also subpoena the arresting officer to be present for the hearing if you request that it do so.
The Kansas Department of Revenue will issue an order requiring that any video or audio recordings be provided by the police to the driver prior to the hearing. They will also mail the driver or his attorney certain documents which are important for the hearing. Our firm also frequently files motions at these hearings, and often files a list of objections to the proceedings with the hearing officer/judge.
It is important that discovery be obtained through the criminal case prior to the hearing so that your attorney is prepared with all of the police reports, video recordings, audio recordings, documents concerning the breath testing machinery and its maintenance, the officer’s field sobriety training manuals, and other documentation so that you get a full and fair hearing and the officer can be properly cross-examined.
Many years ago, the parallel administrative driver’s license suspension system was created to suspend the licenses of those charged with DUI. The powers that be know that people can beat the criminal case in some circumstances because the government has the burden of proof and has to prove the case beyond a reasonable doubt. The driver is presumed innocent and is entitled to all the protections of our Constitution—the full set of rights that define us as Americans and separate us from the totalitarian reigns of lesser governments.
In the administrative proceeding, however, the driver is presumed guilty and bears the burden of proving his or her license should not be suspended. Unfortunately, the Kansas Supreme Court has recently found that many of the protections of our Constitution do not apply to the administrative hearing. Even so, with proper investigation, knowledge of the law, and creativity on behalf of the attorney, there is always hope that the driver’s license hearing can be won and the driving privileges protected.
IF YOU TOOK THE TEST: At the administrative hearing of a driver who took and failed a test, the driver has the burden to prove (1) that the officer did not have reasonable grounds to believe that the person was operating a vehicle while under the influence of alcohol and/or drugs; or (2) that they were not arrested or were improperly arrested; or (3) that they were not given the implied consent notice; or (4) that the testing procedure was done incorrectly. Those are the only issues at the hearing and if you can’t prove it, you lose your license.
IF YOU REFUSED THE TEST: At the administrative hearing of a person who refused a test, the driver has the burden to prove (1) that the officer did not have reasonable grounds to believe that the person was operating a vehicle while under the influence; or (2) that they were not arrested or were improperly arrested; or (3) they were not given the implied consent notice; or (4) that they did not refuse the test. Those are the only issues at the hearing and if you can’t prove it, you lose your license.
IF YOU WERE IN A TRAFFIC ACCIDENT: At the administrative hearing of a person involved in a traffic accident, no matter how minimal the damage was to persons or property, the issues are the same except that if there is any indication that alcohol was involved the only issues are whether there were reasonable grounds to believe the driver was under the influence, whether the implied consent notice was given and whether the test was done properly.
IF YOU WERE UNDER 21 YEARS OF AGE AND TOOK THE TEST: Any person under the age of 21 who operates a motor vehicle with an alcohol concentration of .02 or greater is subject to having his or her driving privileges suspended. The issues at the hearing are the same as those for the over-21’s that took the test. If the underage person tested between .02 and .08 the suspension period is 30 days followed by 330 days of restrictions on the first occurrence and a one year suspension on the second. If the underage person tests between a .08 and .149, the suspension period is one year. If the test result is .150 or higher, the license is suspended for one year followed by one year of restriction to only operating a motor vehicle equipped with an ignition interlock device.
OTHER ISSUES OR DEFENSES: Administrative hearings are tough to win because the driver has the burden of proving that he wasn’t DUI, whereas in a criminal case it is the prosecutor’s burden to prove all elements of a DUI beyond a reasonable doubt. The easiest way to win is if the officer fails to appear. If the police officer doesn’t show up to the hearing – case dismissed. Whether a person was even driving may be a defense. Whether a person drank alcohol after driving may be a good defense. There are a multitude of technical statutory or constitutional arguments and defenses. There are also medical defenses (diabetics may often appear intoxicated during a period of insulin deficiency; asthmatics may have a hard time blowing into an Intoxilyzer machine). The list of defenses is only limited to the work and creativity that you and your attorney put into developing a defense for the administrative hearing.
SUSPENSION PENALTIES:
If you fail to meet your burden of proof at the administrative hearing:
- FIRST TIME TEST FAILURE BETWEEN .08 AND .149: Driving privileges are suspended for 30 days and then restricted to only driving with an ignition interlock device for a period of 6 months if the person’s driving record is clear, and for 12 months if the person has a prior Minor in Possession/Consumption, Transporting an Open Container, or 3 moving violations within a year on their driving record. The reinstatement fee is $100.00.
- FIRST TIME TEST FAILURE OF .150 OR HIGHER: Driving privileges are suspended for one year followed by one year of restriction to only driving a vehicle equipped with an ignition interlock device.
- SECOND AND THIRD TEST FAILURE BETWEEN .08 AND .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $200.00.
- SECOND TEST FAILURE OF .150 OR HIGHER: Driving privileges are suspended for one year followed by 2 years of ignition interlock.
- THIRD TEST FAILURE OF .150 OR HIGHER: Driving privileges are suspended for one year followed by 3 years of ignition interlock.
- FOURTH TEST FAILURE BETWEEN .08 AND .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $300.00.
- FOURTH TEST FAILURE OF .150 OR HIGHER: Driving privileges are suspended for one year followed by 4 years of ignition interlock.
- FIFTH TEST FAILURE: Driving privileges are suspended for one year followed by 10 years of restriction to only driving a car equipped with an ignition interlock device.
TEST REFUSAL
- FIRST TIME REFUSAL: Driving privileges are suspended for one year, followed by two years of only driving with an ignition interlock device. The reinstatement fee is $400.00.
- SECOND TIME REFUSAL: Driving privileges are suspended for one year, followed by three years of only driving with an ignition interlock device. The reinstatement fee is $600.00.
- THIRD TIME REFUSAL: Driving privileges are suspended for one year, followed by four years of only driving with an ignition interlock device. The reinstatement fee is $800.00.
- FOURTH TIME REFUSAL: Driving privileges are suspended for one year, followed by five years of only driving with an ignition interlock device.. The reinstatement fee is $1,000.00.
- FIFTH TIME REFUSAL: Driving privileges are suspended for one year, followed by ten years of only driving with an ignition interlock device. However, a driver may petition the court for relief from the interlock restriction after 5 years.
NOTE: The administrative hearing and the criminal case are two separate cases. Neither one has any bearing whatsoever on the other. However, if you are suspended pursuant to one, that suspension will be run concurrent with a suspension in the other. So, if you lost at the administrative hearing and at trial, and it was your second time DUI, you would only be suspended for one year total. But, your driving record will reflect two separate suspensions for the same arrest.
RESTRICTED DRIVER’S LICENSE:
Changes to the law in 2011 allow for people whose licenses are suspended for a year to apply for a restricted license that will allow them to drive with an ignition interlock device after either forty-five days for a test failure or ninety days for a Test Refusal.
- TEST FAILURE: Any person who is suspended for one year as a result of failing a test by submitting a sample which shows .08 or greater alcohol concentration may apply for a restricted license that would allow the person to drive for work purposes, and in other limited circumstances, with an ignition interlock device after serving 45 days of their suspension. The application for the restricted license will be granted as long as the person is not suspended for any other reason.
- TEST REFUSAL: Any person who is suspended for one year as a result of refusing a test may apply for a restricted license that would allow the person to drive to and from work, and in other limited circumstances, with an ignition interlock device after serving 90 days of their suspension. The application for the restricted license will be granted as long as the person is not suspended for any other reason.
APPEALING THE SUSPENSION: Every driver has the right to appeal the administrative driver’s license suspension to the district court of the county in which the hearing was held. This petition for review must be filed within 14 days or the suspension will stand. If an appeal is taken, the matter is heard anew by a judge and the administrative hearing is treated as though it never happened, except objections at the district court level must have been previously raised at the administrative level or they are deemed waived. The driver’s privileges will most likely remain valid while the case is pending before the district court. Appealing an administrative hearing is an exceptionally complex task. The Kansas Department of Revenue will assign one of its attorney’s to “defend” against your petition for review and they do little else all day every day than try these cases. They will make it as difficult as possible. These types of appeals require the most experienced and knowledgeable of Kansas DUI attorneys.