With 50 states in the Union, there are 50 different DUI/DWI laws for driving under the influence of alcohol or drugs. If someone reviewed all of the drunk/drugged driving laws in all of the states to find one to serve as the base model, they could do worse than to choose the laws of Kansas. The state's drunk driving laws have features common to all state statutes, but not many individual frills. That's no reason to skip getting an overview of this state's driving under the influence (DUI) statute, since the Kansas law also provides some criminal penalties including jail time.
Drunk Driving in Kansas
One might think that there is some uniform DUI law that applies to all states. But this is not the case. Each state enacts its own drunk driving laws, although, thanks to federal nudging, all make it a crime to drive with a blood alcohol concentration (BAC) of 0.08 percent or higher, reduced to 0.04 percent for commercial drivers. This is termed a "per se" DUI, since the chemical test results are enough, in and of themselves, to convict a driver. No evidence of actual impairment is required.
Kansas law concerning drunk driving includes this 0.08 BAC legal limit and also has a general prohibition against driving while under the influence of drugs or alcohol to a degree that renders the person incapable of safely driving a vehicle. This is sometimes referred to as a DWI for driving while intoxicated.
What exactly does "under the influence" mean? In Kansas, drivers are considered to be under the influence when their faculties are substantially impaired by drugs and/or alcohol. This charge requires evidence of impairment beyond a reasonable doubt, which often includes the testimony of police officers as to the person's driving and comportment at time of arrest.
Finding a Drivers Blood Alcohol Concentration
It isn't possible to figure out a person's BAC level simply by looking at them, talking with them or watching them perform a roadside sobriety test. Nor is a BAC level linked to a certain number of drinks. That's because people react differently to different levels of alcohol, and gender, weight and the amount of food eaten all play roles in the BAC level.
In order to determine a driver's actual BAC, chemical tests are required. The one most frequently used is the breathalyzer, a machine the driver blows into, but BAC can also be checked from a blood sample.
Implied Consent Laws in Kansas
A driver has to take a chemical test before the state can know the BAC level. Every state has had to face the reality that a driver who has been drinking has every reason to refuse to take a test, and states are reluctant to allow forced testing in run-of-the-mill DUI stops. That is why all states, including Kansas, have passed implied consent laws.
Implied consent laws are based on the idea that driving on a particular state's roads is a privilege, not a right. States condition that privilege on an implied agreement to take a breath test or chemical test if requested to do so by a law enforcement officer after a DUI stop. By driving on Kansas roads, an individual is deemed to have consented to this.
Administrative Sanctions for Test Refusal
Any motorist who violates the implied consent laws in Kansas faces administrative sanctions from the Kansas Department of Revenue. These are not, in and of themselves, criminal sanctions. A driver will not be sent to jail for refusing to take a breathalyzer test, but they can expect to lose their driving privileges immediately. However, the imposition of administrative sanctions does not affect or limit criminal liability if the prosecutor takes the DUI case to court.
The arresting officer confiscates the person's license when they refuse to take the test and gives them a short-term temporary license. For 10 days after the arrest, the driver can ask for an administrative hearing to argue their case. If they do not do so, or if they request a hearing and and lose, the driver will automatically have their license suspended for one year.
Ignition Interlock Devices in Kansas
In addition, a driver who has a license revocation will get an IID restriction when they get their driving privileges back (after paying the hefty reinstatement fee.) An IID is an ignition interlock device, a kind of breathalyzer that attaches to a motor vehicle and prevents it from starting. The engine will start only if the driver breathes into the device and shows that their system is free of alcohol.
The IID restriction period can range from one to 10 years depending on the driver's prior record. The driver must pay for installation and monthly maintenance fees. For purposes of determining the number of repeat offenses, all prior DUIs, refusals and failed BAC tests within the person’s life are counted.
First-Offense Criminal DUI Penalties
Kansas also imposes criminal penalties on those who are convicted of DUIs in the state. These are completely separate from the administrative penalties and have no impact on them. The level of criminal penalties that a court applies to a particular case depends in part on how many prior drunk driving offenses the driver has on their record. In Kansas, there is no look-back period for DUI convictions; any DUI a driver gets will count as a prior conviction for their lifetime.
First offenders in Kansas get the lightest penalties and will usually avoid serving jail time. The law provides for a minimum sentence of 48 hours in jail and a maximum of six months, but the judge can, and often does, assign 100 hours of community service instead.
Fines start at $500 but can be as high as $1,000, and, in addition, the driver will have to pay court costs and other fees. The statute allows the court to substitute community service for all or part of a DUI fine. The first-time DUI driver loses their license for 30 days with a one-year IID requirement. They will also have to attend a substance abuse evaluation and complete any treatment the evaluator recommends.
First-Offense Diversion Program
A driver who is arrested for a first DUI in Kansas may be able to get their charges dismissed under the state's diversion program. This program allows the driver and the district attorney to enter into an agreement under which the driver will undertake certain actions within a specified period of time. If they do so, the prosecutor drops the DUI charges.
The Kansas DUI Diversion program is not guaranteed to any driver. It is considered a privilege rather than a right. To qualify, the driver must show that allowing them to undertake the program will “serve the ends of justice and the interests of the community.”
In order to qualify for the program, the driver must show:
- They were never convicted of a DUI, even if the case was diverted.
- They were never convicted of any felony.
- Their DUI did not cause injury or death.
- Their BAC was not 0.24 percent or higher.
- They did not have any passengers under the age of 14 in the vehicle when they were arrested.
- They were not driving with a suspended or revoked license.
- They did not hold a commercial driver’s license at the time of the offense.
Determining Eligibility for First-Offense Diversion
The district attorney determines whether drivers are eligible for first-offense diversion. If selected, they must agree not to break the law and to report to a court-appointed program coordinator for a certain period of time. They must also participate in a drug and alcohol treatment program and pay all necessary fines, fees and court costs. The court may also impose additional requirements.
If the driver completes all requirements, the district attorney will dismiss the charges against the driver. If they do not complete the program within the time allotted, the criminal case is reinstated.
Repeat DUI Offender Criminal Penalties
A second DUI offense bring more severe punishment than a first DUI offense in Kansas. The driver's potential jail sentence is between 90 and 365 days, and five days must be served before probation. Fines range from $1,250 to $1,750 plus court costs. Other sanctions are the same as for first offenders, except the license suspension is for one year, and the IID period is two years.
Each subsequent offense opens up the possibility of increased criminal punishment. However, the penalties do not go up dramatically for repeat offenders. The range of jail time for third, fourth and subsequent offenders remains the same as for a second offender. The one-year license suspension is also the same for second, third, fourth and subsequent offenses. Fines go up to $2,500 for a third and subsequent offense, plus license suspension, and the cost for restoring a suspended license and the IID period also increase.
Enhanced Penalties for DUIs
Some drunk/drugged driving offenses are considered worse than others in Kansas, and particular aggravating circumstances can result in stiffer penalties than for a standard DUI. For example, if a driver stopped for a DUI is found to have a passenger in the car under the age of 14 years, they will receive an extra mandatory sentence of 30 days of incarceration. Drivers whose BAC is not just at 0.08 percent or above but much higher, at 0.15 percent or above, also get enhanced penalties.
Perhaps the most serious aggravating circumstances that can occur during a DUI involves hurting or killing other individuals. The drunk or drugged driver might hit a pedestrian, cause a traffic accident with another vehicle, or cause a rollover or other solo accident that injures a passenger in the car. Increased jail terms and fines will apply.
Kansas Drivers Under 21
Prohibition came to a screeching halt with the enactment of the 21st Amendment in 1971, and that law left the drinking age up to each state. However, Ronald Reagan used the National Minimum Drinking Age Act of 1984 to encourage all states to set the drinking age at 21 by threats of cuts to federal funding for state highway money. Today, all states set that limit, including Kansas.
Because those under the age of 21 are not legally permitted to drink in Kansas, the state has special drunk driving rules for this group. They are part of Kansas' zero tolerance law that makes it illegal for a person under 21 to drive with a BAC of 0.02 percent or above. Any driver in violation of this law is subject to an immediate driver's license suspension.
A first violation of the zero tolerance law results in a license suspension for 30 days, followed by 330 days of restricted driving with an IID. Very high BAC levels result in longer suspension periods. An under-21 driver who gets picked up for a second violation of the zero tolerance law is subject to a one-year suspension of their license, followed by two years of driving with an IID. Third-time offenders must keep the IID on their vehicles for three years after the one-year suspension.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.