Criminal Justice System

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.

TWO TYPES OF DUI: As discussed earlier, there are two separate ways for the prosecutor to prove a DUI case:

1. By proving that the defendant was a less safe driver due to impairment 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 two 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 operate a vehicle with a blood alcohol of .02 or more. If you are under the age of 21 and you submit to a breath, blood or urine test and your alcohol concentration is determined to be .08 or greater, your driving privileges may be suspended for one year. 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. 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 book but should be explored at length with your attorney.

As of April 2003, if a person who holds a CDL is convicted of a DUI 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.

PRIOR RECORD: The penalties for a DUI conviction depend on your prior record of driving under the influence of alcohol or drugs. Kansas used to only consider your record for the past five years, but as of July 1, 2001, any DUI convictions or diversions in a person's entire lifetime can and will be considered. So, if you had a DUI in 1985 and you get one in 2008, 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 admits 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 is considered a "conviction" 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: A person that pleads no contest, pleads guilty or is convicted at trial is subject to the following judicial penalties.

DUI FIRST OFFENSE: Conviction of a first DUI is a Class B misdemeanor.

JAIL: 48 consecutive hours up to a maximum six (6) months imprisonment, or, in the court's discretion, 100 hours of community service. Some jurisdictions may let a defendant spend the mandatory 48 hours jail time in a residential treatment program like the Community Weekend Intervention Program.
FINE: $500.00 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.
SUSPENSION OF DRIVING PRIVILEGES: A criminal conviction of a first time DUI for a person who gave a test result under a .150 results in a 30 day suspension of driving privileges and 330 day restriction to driving only to and from work, in the course of employment, or to school. If the person submitted a test of .150 or greater, or refused to take a test, his or her driving privileges are to be suspended for one year, followed by one year of only operating a vehicle equipped with an ignition interlock device. There are no hardships or exemptions available. This suspension goes on the person's driving record.

DUI SECOND OFFENSE: Conviction of a second DUI in a lifetime is a Class A misdemeanor.

JAIL: a minimum of 90 days up to a maximum of one year.
FINE: $1,000.00 to $1,500.00, 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 incarceration are they eligible for probation. Two of the days of imprisonment must be consecutively served in a jail facility. The other three days may be served in a work release program in which the inmate returns to work each night, or on house arrest. In some jurisdictions the two days of jail time can be served in an inpatient alcohol treatment facility like the Community Weekend Intervention Program in Johnson County. 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. In addition, as of July 1, 2007 the court must order that each vehicle owned or leased by the convicted person must be equipped with an ignition interlock device or be impounded or immobilized for 2 years. All costs associated with the ignition interlock or impoundment must be paid by the person convicted.
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, or the person refuses, 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. There is no hardship or exemptions available. This suspension goes on the person's driving record. Also, see above regarding ignition interlock and impoundement.

DUI THIRD OFFENSE: Conviction of three DUI's in a lifetime is a FELONY. However, a city court may exercise jurisdiction over a third time DUI under what is called “concurrent jurisdiction”. In that case, the DUI will be treated as a misdemeanor.

JAIL: a minimum of 90 days and up to a maximum of one year.
FINE: $1,500.00 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. Eighty-eight (88) of the days of incarceration may be served in a work release program where the inmate comes back to the jail each night after work, or on house arrest. Inpatient treatment in lieu of jail time is generally not available for a third time offender. In addition, as of July 1, 2007 the court must order that each vehicle owned or leased by the convicted person must be equipped with an ignition interlock device or be impounded or immobilized for 2 years. All costs associated with the ignition interlock or impoundment must be paid by the person convicted.
SUSPENSION OF DRIVING PRIVILEGES: Upon a third criminal conviction for 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, or refused a test, he will be suspended for one year, followed by a three year restriction to only driving with an ignition interlock device. 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 also 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: After the person has served the term of incarceration imposed by the court (at least 90 days), the individual is released to the Kansas Department of Corrections for a one year post-release supervision period which will include mandatory drug and alcohol treatment. As of July 1, 2007 the court must order that each vehicle owned or leased by the convicted person must be equipped with an ignition interlock device or be impounded or immobilized for 2 years. All costs associated with the ignition interlock or impoundment must be paid by the person convicted.
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, or who refused a test, will be suspended for one year and then restricted to only driving vehicles equipped with an ignition interlock device for four years. 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: After the person has served the term of incarceration imposed by the court, the individual is released to the Kansas Department of Corrections for a one year post-release supervision period which will include mandatory drug and alcohol treatment. As of July 1, 2007 the court must order that each vehicle owned or leased by the convicted person must be equipped with an ignition interlock device or be impounded or immobilized for 2 years. All costs associated with the ignition interlock or impoundment must be paid by the person convicted
SUSPENSION OF DRIVING PRIVILEGES: Upon a fifth criminal conviction for DUI, the defendant's driver's license is suspended FOREVER. In other words, you can never get another driver's license for the rest of your life.

PLEA BARGAINING: Plea bargaining on DUI's to avoid the mandatory minimum penalties is prohibited by law.

EXPUNGEMENT: Expungement is the process whereby convictions are removed from a person's criminal record. As of 2006, an arrest, diversion or conviction for a Kansas DUI cannot be expunged. Once diverted or convicted for DUI, it cannot and will not be removed from your record. You can expunge most other crimes from your record in Kansas, but not a DUI.

Go to next document (Administrative Driver's License Suspension)

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