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Kansas DUI Defense

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A Kansas Driving Under the Influence charge is a serious offense. A conviction or even a charge for a DUI can bring serious consequences. Your license can be suspended or restricted, you could face jail time, your reputation in the community can be affected, as well as your relationships with family and friends. If you are arrested for a DUI you should look at hiring an experienced, skilled, and aggressive attorney to assist you quickly.

What is Driving Under the Influence?

Hypothetical Situation: at a community event alcoholic drinks are served. Several people consume these drinks, and then drive home. Is that illegal? Should everyone get arrested or this? Are these people committing crimes? Absolutely not. You can drink alcohol and drive. The question comes, under Kansas law, as to whether you are incapable of safely operating a vehicle (regardless of any breath or blood result), or whether your breath or blood result is .08 or over within 3 hours of operating the vehicle. Additionally, you can be charged with a DUI if you are under the influence of drugs, including prescription medication. Oftentimes law enforcement uses a drug recognition expert to determine the results of drug induced intoxication in these situations.

The Reason To Act Quickly….The Administrative (License) Hearing

Driving Under the Influence charges in Kansas carry with them two possible penalties. One is criminal (possible probation, jail/prison, alcohol evaluations, substance abuse tests) and the other is administrative (license suspensions and restrictions). Within 14 days of a DUI arrest your license will likely have serious consequences unless you request a license hearing. In Kansas this request is done through the Kansas Department of Revenue. Once the administrative hearing is requested, your license remains valid until the date of the hearing and 30 days after the hearing. The hearing does not take place immediately after you request it but at a later date. Your attorney should get all video, audio, police reports, and other documentation before that hearing and send the information to you. The suspension on an administrative hearing is determined on prior DUI offenses and whether you submitted to an intoxalyzer test. This hearing challenges the ability of the government to suspend or apply ignition interlock on your vehicle. These hearings are designed for the government to prevail as proof beyond a reasonable doubt is not the standard. The hearing is in front of a Kansas Department of Revenue hearing officer rather than a courtroom judge. However, you should still request this hearing as there are several factors that can impact the outcome and result in a win for you.

Criminal Penalties

When you have a first or second time DUI and are arrested by a city police officer, your case will take place in the municipal court of that city. These are considered misdemeanor DUI cases. Each of these courts has their own rules and procedures on how to conduct yourself in court. You should hire an attorney who is familiar with the rules of that municipality. Even a first time DUI carries with it a potential jail sentence of 6 months and a minimum fine of $750. A second time DUI carries with it increased penalties, up to one year in jail, a minimum fine of $1,250 and a mandatory minimum sentence of at least 120 hours of confinement with at least 48 hours in custody. Confinement after the first 48 hours can sometimes be satisfied with work release or house arrest. In most misdemeanor DUI cases, your attorney can appear for you at the majority of the hearings without you. In Kansas, a felony DUI involves a third time (or more) DUI offense with one of the two prior offenses occurring within 10 years from the date of your current charge. The penalties drastically increase with felony cases, requiring a minimum of 30 days of confinement and at least 48 hours in custody. Felonies must be held in district court, not in municipalities. Felony cases are much more serious and now land on a Kansas “sentencing grid” and your past criminal history comes into account in calculating a potential sentence if you are convicted. Fines on felony cases raise up to a minimum of $1,750.

Appeals of Municipal Court Cases, District Court Cases, and Licensing Issues

Municipal Court DUI convictions can be appealed. A municipal court is not a court of record; you have no right to a jury trial; and if you post an appellate bond your case will be transferred to district court. For example, if you appeal a city court DUI in Overland Park the case is transferred to Johnson County District Court. This is good to keep in mind if you do not prevail on a municipal offense. If you appeal a municipal conviction, the case is treated as a complete “redo” in district court, otherwise known as “an appeal de nuevo”. For District Court DUI convictions, the only option for appeal is to file with the Kansas Court of Appeals in Topeka, Kansas. There are many possible strategies we can exploit to help achieve the best possible outcome. Administrative and License issues also carry with them the right to appeal. The normal license hearing is in front of a hearing officer (not a judge) in an administrative setting. No transcript is taken. You have limited ability to call witnesses and to present evidence. In an appeal you are able to go in front of the applicable district court with more weapons at your disposal.

Evaluations

In every DUI case where you are diverted, tried and/or, convicted, you must obtain an evaluation. The evaluation does not determine the sentence, but the level of treatment and supervision an individual must obtain. Some evaluators are mandated by certain courts. Other courts allow you to pick your evaluator and sometimes in essence pick your supervisor/diversion/probation. It is incredibly important to have an attorney who knows what evaluator and supervisor can assist you.

Expungement

You can expunge most felonies, typically after 3 or 5 years. DUI expungements are usually eligible after 5-10 years. Kansas legislature mandates that if you have been off probation or your sentence for 5 years on a first time DUI, you may be eligible for an expungement. For second time DUI or more – you have to wait 10 years. Contact an attorney at our firm and we can guide you through this process.

Protect Your Rights

A person is not guilty of a drinking and driving violation just because he or she is charged with one. One must understand suppression of blood and alcohol draws, the 4th amendment to the United States Constitution, and an individual’s rights to be free from unreasonable searches and seizures. A charge of DUI in Kansas can have serious ramifications on a defendant’s driver’s license, criminal record and ability to function in society. Please contact our firm for an aggressive, skilled, and experienced defense.

Why Fairbanks Demarco?

Fairbanks DeMarco will provide quick, effective, honest, and aggressive advice on all family and criminal matters.

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Overland Park, KS 66210

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