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Fight Every Olathe DUI Charge

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Our Olathe law firm's Olathe DUI lawyers can help you with all Olathe drunk driving charges 

The Law Offices of Jeremiah Johnson is located at 104 E. Poplar, just a few minutes from the Olathe Municipal Court and a block from the Johnson County Courthouse. The Olathe DUI attorneys in our Olathe law office handle hundreds of driving under the influecne and traffic cases in Olathe and throughout Johnson County each year.  Our DUI attorneys have the experience to help protect your rights and liberty.

The State of Kansas and City of Olathe maintain and enforce very strict driving under the influence (DUI) laws that call for jail time with every conviction, even for first time offenses. Such strict laws are combined with vastly increased DUI enforcement efforts by the Olathe Police Department which literally arrests thousands of people for DUI each year.

People charged with a DUI in Olathe are facing jail time, a driver's license suspension, hundreds or thousands of dollars in fines, as well as the embarrassment, lost time, and inconvenience that will come with a conviction of driving under the influence in Olathe. Quick intervention by an experienced Olathe DUI attorney is necessary to protect your rights, property, liberty, and to maintain your license.

The staff and DUI lawyers at the OIathe Law Offices of Jeremiah Johnson, LLC, we still believe that everyone is innocent until proven guilty and that being charged with an Olathe driving under the influence charge (DUI/DWI) is not remotely the same as being convicted of an Olathe drunk driving charge.  We pledge

While many people - and tragically, some criminal defense attorneys - accept DUI tests as irrefutable evidence, in reality, Breathalyzers such as the Intoxilyzer 8000/5000 and field side sobriety tests (FST's) can be highly inaccurate under many conditions. For instance, most people cannot pass field side sobriety tests even when sober due to injuries, age, weather, or other conditions. We believe that the FST's and Breathalyzers used are some of the most inaccurate and unreliable methods of gathering evidence in all of law enforcement. As a result, we diligently and aggressively explore every angle relating to the FST's and Breathalyzer results when evaluating your Olathe DUI case to ensure that your rights are protected.

It only makes sense that your Olathe DUI attorney should diligently scour all of the facts and circumstances of your Olathe DUI case, however not all attorneys approach Olathe DUI charges in this manner. In fact many Olathe DUI attorneys approach DUI cases expecting to plea the case. The problem with this approach is that important facts which could lead to an acquittal may be missed or even purposely ignored in an effort to quickly work out a plea and move on to another case.

In order to best serve our clients, this office approaches every Olathe DUI charge expecting to take the case to trial. We study the police reports, videos, and other relevant evidence in every case in order to serve YOUR interests. However, if after evaluating a case, we decide that a plea deal is in the client's best interests, then we will certainly recommend that option. The bonus to our approach is this: experience has shown that the best deals are offered to attorneys who are prepared to go to trial and possess a willingness to do so.

In almost all Olathe, Kansas DUI cases, you only have 14 days from your arrest to request a hearing to determine if your license will be suspended, and if so, for how long. Suspensions range from as low as 30 days to forever! Thus, it is highly suggested that you retain an experienced Olathe Kansas DUI attorney immediately to protect your rights and driving privileges.

Olathe, KS Driving Under the Influence charges/arrests involve two distinct and completely separate proceedings: (1)the criminal case, which is resolved in the municipal or district court where the case is charged. This is where the city or State is trying to put you in jail and levy fines of thousands of dollars upon you; and (2)the Kansas Department of Revenue administrative proceedings, which can result in the suspension of your driving privileges. It is extremely important to pay attention to both the criminal court case and the administrative driver's license case, as the deadlines, rules, procedures and burdens of proof are entirely different.

At the administrative level, the Kansas Department of Revenue is attempting to suspend your license based on the Olathe DUI charge for a stated period of time such as 30 days (usually the case in a first time Intoxilyzer test failure), 1 year (the case for a first time Intoxilyzer test refusal) or in some cases, forever. They do not care if you have no other means to get to work and they do not care if your family will be affected by the loss of your license. They do not offer hardships either, regardless of your situation.

The term of a driver's license suspension that you face depends upon several factors, including: (1)whether you failed the chemical test (Intoxilyzer) or whether you refused to submit to it; (2)your intoxilyzer reading; (3)whether this is your first or subsequent test failure or refusal; and (4)whether you are over or under 21 years of age. The length of the suspension ranges from 30 days to permanent revocation of driving privileges, please call us for more information about your specific case.

People charged with an Olathe, Kansas DUI are entitled to an administrative hearing wherein you or your Olathe, Kansas DUI lawyer can challenge the grounds upon which your license is suspended. If you or your Olathe, Kansas DUI attorney requests an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. In other words, the validity of your temporary driving privileges is extended until 30 days after the hearing. In Johnson County, DUI Administrative Hearings are usually scheduled at least 3 and as many as 6 months after the Olathe, Kansas DUI arrest. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case.

At the Kansas DUI administrative hearing, a number of issues can be raised in your defense, depending on the facts of your case. These issues include: (1)whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs; (2)whether you were given the legally required notices before being asked to submit to testing; (3)whether your actions constituted a legal refusal to take the test; (4)whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE); (5)as well as other due process or other constitutional issues.

If you are successful at the Kansas Department of Revenue administrative hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all. However, you or your Olathe Kansas DUI attorney must send a letter requesting an administrative hearing to the Kansas Department of Revenue within 10 calendar days of the day you received the DUI or your driving privileges will automatically be suspended, period. Thus, it is critical that you quickly retain a well-qualified Olathe DUI defense lawyer as soon as possible after the arrest.

POTENTIAL OLATHE, KANSAS DUI PENALTIES

Olathe, Kansas DUI criminal cases may result in fines, jail time, court-ordered suspension of your driving privileges (in addition to the suspension from an administrative hearing), and the potential impoundment of your vehicle. The amount of fine and the length of the jail sentence are determined, in large part, by whether you have previously been convicted, or placed on diversion for an Olathe DUI.

In most cases, a first time offense calls for a 6 month maximum sentence, and the potential incarceration period goes up from there. It rarely matters where or how long ago a prior conviction occurred. Now, almost all prior DUI convictions (whether in Kansas or another state) and DUI diversions count, regardless of where or how long ago they occurred.

FIRST OLATHE DUI CONVICTION

A first conviction for an Olathe, DUI is a Class B misdemeanor offense. The potential sentence is up to but not more than six months in jail . If convicted, the defendant must serve at least 48 consecutive hours in custody by statute before probation can begin, unless the court allows the person complete 100 hours of community service instead of the mandatory minimum 48 hours in custody. A skilled Olathe DUI attorney might also be able to enroll the defendant in (CWIPS) which is a weekend in "custody" in a motel like facility. The fine for a first conviction ranges between $500 and $1,000. At the administrative level, driving privileges are suspended for 30 days, followed by 330 days of restrictions for test failure. For a test refusal, driving privileges are suspended for a full year if this is the first time a defendant has refused to submit to the breathalyzer. The driver must undergo a drug and alcohol evaluation and will be required to successfully complete any and all treatment is recommended by the evaluator.

SECOND OLATHE DUI CONVICTION

A second conviction for an Olathe, DUI (or any other DUI in Kansas) is a Class A misdemeanor offense with a sentence as long as one full year. The defendant must serve at least five consecutive days in custody as a prerequisite to probation, but after hearing arguments from a skilled Olathe DUI attorney, the judge can order the defendant to serve 48 hours in custody followed immediately by at least 3 consecutive days of work release or house arrest to satisfy the 5-day requirement. As with a first offense, completion of a substance abuse treatment program is required. The fine for a second conviction ranges from $1,000 to $1,500. At the administrative level, driving privileges are suspended for one year followed by one year of ignition interlock restrictions for a test failure.

THIRD OLATHE KANSAS DUI CONVICTION (FELONY CHARGE)

A third conviction for an Olathe DUI (or any other Kansas DUI) is non-grid felony punishable by up to 12 months in prison. The mandatory minimum underlying sentence is 90 days; however, after hearing arguments from a skilled Olathe DUI attorney, the judge can order the defendant to serve 48 hours in custody followed immediately by at least 88 consecutive days of work release or house arrest (which may be structured to allow the defendant to go to work and/or treatment) to satisfy the 90-day custody requirement. The fine for a third conviction ranges from $1,500 to $2,500. At the administrative level, the term of suspension for a test failure is the same as for a second offense: one year suspension of driving privileges followed by one year of interlock restrictions. In addition, post release supervision will be required for a 5th Kansas DUI conviction.

FOURTH OLATHE KANSAS DUI CONVICTION

A fourth conviction for an Olathe DUI is also a felony. Like a third conviction, there is a minimum sentence of 90 days and a maximum sentence of 12 months in prison. However, after arguments by an Olathe DUI attorney are made, a person convicted of a fourth or subsequent DUI, might be ordered to only serve 72 hours in jail before being eligible for a work release program. The fine for a fourth conviction is at least $2,500. Upon a fourth DUI conviction in Kansas, driving privileges are suspended for one year followed by one year of interlock restrictions for a test failure. If there is a fifth conviction, driving privileges are permanently revoked regardless of whether the driver refused or failed the test. In addition, post release supervision will be required for a 5th Kansas DUI conviction.

OLATHE DRIVING UNDER THE INFLUENCE (DUI/DWI) DIVERSION LEGAL REPRESENATION

The Olathe, Kansas DUI laws allow for a DUI diversion for first time offenders which allows a defendant to avoid serving a jail sentence. The City of Olathe also has a diversion program which can be advantageous in certain cases where there are not good triable issues in a case.

An Olathe DUI Diversion is essentially a contract between the charging jurisdiction and the Olathe DUI defendant in which the person charged gives up his or her right to a speedy trial and his or her right to a jury trial, in exchange for an opportunity to "avoid" a conviction for DUI. Under the diversion agreement, you will be required to pay a fine; attend an alcohol and drug safety action program or treatment program, or both; use no alcohol or drugs; and fulfill whatever other terms and conditions the city or state requires. It essentially requires you to complete all the requirements of a probation, without actually ever having been placed on probation.

Olathe DUI Diversion has one real benefit: If, at the completion of the diversion period you have completed all the requirements of the contract, the criminal charge of DUI is "dismissed." However, if you do not successfully complete the requirements of the Diversion contract, the criminal case against you will be reinstated and your trial will be conducted on stipulated facts, meaning that there will be no opportunity to cross examine witnesses, present new evidence, or mount any meaningful defense. In addition, the diversion will count as a "conviction" for subsequent DUI charges. For instance, if a person were granted a diversion and then later in life were charged with another DUI, the DUI would count as a second, even though they were never convicted on their first charge.

In many cases, the only difference between a diversion and a conviction consist of only the 48 hours in custody. As a result, this office often recommends that those charged with a first time Olathe DUI seriously consider fighting the charge, especially if their case has some good legal issues with which an acquittal might be secured.

As a result, anyone charged with a DUI in Olathe has their liberty, money, and license at jeopardy. This makes contacting an Olathe DUI lawyer extremely important.

If you're looking for a Olathe, Kansas DUI lawyer, call 913-764-5010 today.

How can a person be acquitted of a DUI charge in Olathe, Kansas?

If you're reading this page, that is undoubtedly the question on your mind. The final answer is not a simple one and cannot be given without consulting an experienced Olathe, Kansas DUI lawyer.

Relevant factors for securing an acquittal or dismissal of an Olathe DUI may include:

1. The lack of a lawful reason to stop your vehicle - If the police stopped your vehicle without a lawful reason, all evidence gathered as a result may be suppressed - meaning not allowed into evidence. This analysis can swing on tiny issues and requires careful scrutiny, best done by a diligent attorney. Contrary to popular belief, weaving within one's lane of traffic is not illegal, but can be used as a valid reason to pull a person over in certain circumstances.

2. Improper testing - Certain tests such as touching one's nose with a finger, walking and turning, reciting the alphabet backwards, counting, or balancing on one leg may not be admissible into evidence as they are not necessarily recognized as being a valid indicator of one's intoxication. In other cases, mitigating factors such as prior injuries or medical conditions may render such tests unreliable. Other conditions such as wind, rain, cold, or snow may come in with other factors to cast doubt on these tests as well.

3. The lack of probable cause to believe a person is drunk - The police must make specific observations to conclude that they have probable cause to arrest a person for a DUI.Portable breath tests (also known as PBT's) - These tests are often not admissible into evidence as they are often not entirely accurate. In addition, the officer administering the test must do so properly for the indication to provide probable cause to arrest someone.

4. The Breathalyzer test may not be reliable - If the test is not reliable, it may not be able to be used against you in court. Reasons to exclude an breathalyzer/intoxilyzer test from evidence include a machine with an expired license, a machine with an inexperienced operator, a machine operating incorrectly, or an unlicensed machine operator.

5. Evidence may be the product of an illegal search - The police may not search a car simply because it has been pulled over for speeding or some other minor traffic offense - they must have some suspicion of criminal wrongdoing or consent from the driver. Any evidence that is the product of an illegal search would likely be inadmissible in court.

6. Medical and Health problems - These can factor into a court's analysis in determining whether a suspect gave police evidence that they had been drinking or were impaired.

7. Many other conditions unique to your case.

The Inherent Flaws of DUI Testing, Including Field Side Sobriety Testing:

In most Olathe DUI cases, the strongest pieces of evidence for the City of Olathe come from the Intoxilyzer and field side sobriety test (FST) results. These tests are both highly flawed and can be challenged by an experienced Olathe DUI attorney.

1. Horizontal Gaze Nystagmus Test (HGN Test):

What is Nystagmus and why is it tested?

Nystagmus is a natural, normal phenomenon involving the involuntary jerking of the eyes. Alcohol and certain other drugs do not cause nystagmus, but may exaggerate or magnify it. NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII p.3 (2000)

What are the Causes of Exaggerated Nystagmus?

Possible causes of nystagmus other than the use of alcohol include: problems with the inner ear labyrinth; irrigating the ears with warm or cold water; influenza; streptococcus infection; vertigo; measles; syphilis; arteriosclerosis; Korchaff's syndrome; brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eye strain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute head trauma; chronic head trauma; some prescription drugs; tranquilizers; pain medication and anti-convulsant medication; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents; extreme chilling; eye muscle imbalance; lesions; continuous movement of the visual field past the eyes; and antihistamine use.

Recommended Procedures of Horizontal Gaze Nystagmus per the National Highway Transportation Safety Administration:

The procedures for giving the standardized horizontal gaze nystagmus test are as follows:

"Begin by asking "are you wearing contact lenses", make a note whether or not the suspect wears contact lenses before starting the test.
"If the suspect is wearing eyeglasses, have them removed.
"Give the suspect the following instructions from a position of interrogation (FOR OFFICER SAFETY KEEP YOUR WEAPON AWAY FROM THE SUSPECT):
  • "I am going to check your eyes."
  • "Keep your head still and follow the stimulus with your eyes only."
  • "Keep focusing on this stimulus until I tell you to stop."
"Position the stimulus approximately 12-15 inches from the suspect's nose and slightly above eye level. Check the suspect's eyes for the ability to track together. Move the stimulus smoothly together or one lags behind the other. If the eyes don't track together it could indicate a possible medical disorder, injury, or blindness.
"Next, check to see that both pupils are equal in size. If they are not, this may indicate a head injury.
"Check the suspect's left eye by moving the stimulus to your right. Move the stimulus smoothly, at a speed that requires about two seconds to bring the suspect's eye as far to the side as it can go.
While moving the stimulus, look at the suspect's eye and determine whether it is able to pursue smoothly . Now, move the stimulus all the way to the left, back across suspect's face checking if the right eye pursues smoothly. Movement of the stimulus should take approximately two seconds out and two seconds back for each eye. Repeat the procedure.
"After you have checked both eyes for lack of smooth pursuit, check the eyes for distinct nystagmus at maximum deviation beginning with the suspect's left eye. Simply move the object to the suspect's left side until the eye has gone as far to the side as possible. Usually, no white will be showing in the corner of the eye at maximum deviation. Hold the eye at that position for about four seconds, and observe the eye for distinct nystagmus. Move the stimulus all the way across the suspect's face to check the right eye holding that position for approximately four seconds. Repeat the procedure.
"After checking the eyes at maximum deviation, check for onset of nystagmus prior to 45 degrees. Start moving the stimulus to the right (suspect's left eye) at a speed that would take about four seconds for the stimulus to reach the edge of the suspect's shoulder. Watch the eye carefully for any sign of jerking. When you see it, stop and verify that the jerking continues. Now, move the stimulus to the left (suspect's right eye) at a speed that would take about four seconds for the stimulus to reach the edge of the suspect's shoulder. Watch the eye carefully for any sign of jerking. When you see it, stop and verify that the jerking continues. Repeat the procedure. NOTE: It is important to use the full four seconds when checking for the onset of nystagmus. If you move the stimulus too fast, you may go past the point of nystagmus or miss it altogether. If the suspect's eyes start jerking before they reach 45 degrees, check to see that some of the white of the eye is still showing on the side closest to the ear. If no white of the eye is showing, you have either taken the eye too far to the side (that is more than 45 degrees) or the person has unusual eyes that will not deviate very far to the side.
"NOTE: Nystagmus may be due to causes other than alcohol. These other causes include seizure medications, PCP, inhalants, barbiturates, and other depressants. A large disparity between the performance of the right and left eye may indicate a medical condition."

Source: NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII pp. 6-8 (2000).

Most Importantly, Scoring of the Horizontal Gaze Nystagmus Test:

The three clues for the HGN test in each eye are as follows:

  • The eye cannot follow an object smoothly
  • Nystagmus is distinct when the eye is at maximum deviation
  • The angle of onset of nystagmus is prior to 45 degrees.

As per the NHTSA Training Manuals, if you observe four or more clues total for both eyes, it is likely that the suspect's BAC is above 0.10. Using this criterion you will be able to classify correctly about 77% of your suspects with respect to whether they are above 0.10.

2. WALK-AND-TURN TEST

a. Procedures for the Walk-and-Turn Test

There are two basic parts to the Walk-and-Turn test: the balance stage and the walking stage.

Prior to the beginning of the test, always ask the suspect if he has had any injuries or other conditions which might affect his ability to walk or balance, including head, back, neck and leg injuries.

The following are the Standard Procedures for the Walk-and-Turn test:

"For standardization in the performance of this test, have the suspect assume the heel-to-toe stance by giving the following verbal instructions, accompanied by demonstrations:

  • 'Place your left foot on the line' (real or imaginary). Demonstrate.
  • 'Place your right foot on the line ahead of the left foot, with the heel of the right foot against the toe of the left foot'. Demonstrate.
  • 'Place your arms down at your sides'. Demonstrate.
  • 'Keep this position until I tell you to begin. Do not start to walk until told to do so'
  • 'Do you understand the instructions so far?' (Make sure suspect indicates understanding.)

"Explain the test requirements, using the following verbal instructions, accompanied by demonstrations:

  • 'When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back.' (Demonstrate 3 heel-to-toe steps.)
  • 'When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this' (Demonstrate)
  • 'While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.'
  • 'Once you start walking, don't stop until you have completed the test.'
  • 'Do you understand the instructions?' (Make sure suspect understands)
  • 'Begin, and count your first step from the heel-to-toe position as 'One'.'

NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII pp. 9-10 (2000)

b. Scoring and Interpretation of the Walk-and-Turn Test

The following are the NHTSA standardized clues for the Walk-and-Turn Test:

  • Cannot keep balance while listening to instructions . Record this clue only if the suspect does not maintain the heel-to-toe position throughout the instructions. The feet must actually break apart. Don't record this clue if the suspect merely sways or uses arm for balance.
  • Starts before instructions are finished . Record this clue if the suspect starts after being told not to start walking 'until I tell you to begin'.
  • Stops while walking . The suspect pauses for several seconds. Do not record if the suspect is merely walking slowly.
  • Does not touch heel-to-toe . Record this clue if there is more than one-half inch of space between the heel and toe on any step.
  • Steps off the line . The suspect steps so that one foot is entirely off the line.
  • Uses arms to balance . The suspect raises one or both arms more than 6 inches from the sides in order to maintain balance.
  • Improper Turn . The suspect removes the front foot from the line while turning. Also record this clue if the suspect has not followed directions as demonstrated, i.e. spins or pivots around.
  • Incorrect Number of Steps . Record this clue if the suspects takes more or fewer than nine steps in either direction.

Each clue is only scored one time even if more than one fault is seen. Two or more clues correctly classifies 68% of the suspects as having a BAC of 0.10 or above. The officer should limit his movement while the suspect is performing the test so as not to distract the suspect.

c. Test conditions for the Walk-and-Turn Test

According to NHTSA, the Walk-and-Turn Test requires a line that the suspect can see, and should be performed on a dry, hard, level, nonslippery surface. Original research indicated that persons with back, leg, middle ear problems, persons 50 pounds or greater overweight, and those over 65 years of age, had difficulty performing the test. (NOTE: Later NHTSA manuals have removed the weight comment, and also inserted the phrase 'imaginary line' at the instruction phase, even though original research always used a visible line.)

Individuals wearing heels more than 2 inches high should be given the option of removing their shoes.

3. ONE-LEGGED STAND TEST

a. Procedures for the One-Legged Stand Test

"Initiate the test by giving the following verbal instructions, followed by demonstrations.

  • 'Please stand with your feet together and your arms down at your side, like this.' (Demonstrate)
  • 'Do not start to perform the test until I tell you to do so.'
  • 'Do you understand the instructions so far?' (Make sure suspects indicates understanding.)

"Explain the test requirements, using the following verbal instructions, accompanied by demonstrations:

  • 'When I tell you to start, raise one leg, either leg, approximately six inches off the ground, foot pointed out.' (Demonstrate one leg stance)
  • 'You must keep both legs straight, arms at your side.'
  • 'While holding that position, count out loud in the following manner: 'one thousand and one, one thousand and two, one thousand and three, until told to stop.' (Demonstrate a count, as follows: 'one thousand and one, one thousand and two, one thousand and three, etc.' Officer should not look at his foot when conducting the demonstration - OFFICER SAFETY.)
  • 'Keep your arms at your sides at all times and keep watching the raised foot.'
  • 'Do you understand?' (Make sure suspect indicates understanding.)
  • 'Go ahead and perform the test.' (Officer should always time the 30 seconds. Test should be discontinued after 30 seconds.)

"Observe the suspect from a safe distance. If the suspect puts the foot down, give instructions to pick the foot up again and continue counting from the point at which the foot touched the ground. If the suspect counts very slowly, terminate the test after 30 seconds."

NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII p. 12-13 (2000)

b. Scoring and Interpretation of the One-Legged Stand Test

The NHTSA manual states that the officer should look for the following clues:

"A. The suspect sways while balancing . This refers to the side-to-side or back-and-forth motion while the suspect maintains the one-leg stand position.

B. Uses arms for balance . Suspect moves arms 6 or more inches from the side of the body to keep balance.

C. Hopping . Suspect is able to keep one foot off the ground, but resorts to hopping in order to maintain balance.

D. Puts foot down . The suspect is not able to maintain the one-leg stand position, putting the foot down one or more times during the 30-second count."

NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII p. 13-14 (2000)

If the suspect scores two or more clues, there is a good chance his BAC is 0.10 or above, according to the original research. Using that criterion, you will accurately classify 65% of the people tested.

Officers must remain relatively motionless and observe the suspect from a safe distance so as to not interfere. If the suspect counts slowly, terminate the test after 30 seconds.

c. Test conditions for the One-Legged Stand Test

According to the 2000 NHTSA Manual, the surface must be level, dry, and a non-slippery surface. Persons 65 years of age, 50 pounds or more overweight, and those with leg, back and middle ear problems will have difficulty performing the test.

However, earlier editions of the standardized field sobriety testing student manuals from NHTSA contain much stronger language, such as the following:

"Certain individuals are likely to have trouble with this test even when sober. People over 60 often have very poor balance. (Since very few elderly people are stopped at roadside, specific guidelines have not been established for them on this test.)....In administering the test, make sure the suspects eyes are open and there is adequate lighting for him to have some frame of reference... In total darkness, the One-Leg Stand is difficult even for sober people." NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., Improved Sobriety Testing, DOT-HS-806-512, p. 7 (1984).

D. SCIENTIFIC CRITICISMS OF THE STANDARDIZED FIELD SOBRIETY TESTS

Many experts have questioned the accuracy of the standardized field sobriety tests, the statistical data behind SFSTs, and the ability of officers to properly administer and interpret SFSTs in the field.

In one particular study, individuals who were completely sober were asked to perform the sfst's and also a set of 'normal-abilities' tests. The 'normal-abilities' test was comprised of exercises and questions which should be well known to individuals, such as one's address, phone number, and walking in a normal manner. Performances for each type of test were then videotaped. 14 police officers were asked to view the videotapes of the 21 sober individuals with 0.00 blood alcohol concentrations doing sfst's and normal-abilities testing. After viewing the 21 videos of sober individuals taking the standardized field tests, the police officers' believed that forty-six percent of the individuals had "too much to drink". Fifteen percent of the officers viewing the normal-abilities videos thought the individuals had too much to drink. S. Cole & R.H. Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, Perceptual and Motor Skills, Vol. 79, pp. 99-104 (1994). The authors concluded that SFSTs must be held to the same standards the scientific community would expect of any reliable and valid test of behavior, and that SFSTs should be examined and judged critically.

In another study, the authors concluded that the HGN test has a high baseline error and a dose/response relationship that varied greatly depending on whether the subject's BAC was falling or rising. In 52 videotapes of actual arrests for DUI, the authors found that the HGN test was improperly administered 51 times. JL Booker, End-position nystagmus as an indicator of ethanol intoxication, Science and Justice 2001: 41(2): 113-116 (2001)

In another study, a series of experiments was performed at the Rutgers University Alcohol Behavior Research Laboratory to test the ability of social drinkers, bartenders, and police officers to gauge the sobriety of individuals. All three subject groups - the social drinkers, bartenders, and police officers- correctly judged the subjects level of intoxication only 25 % of the time. Psychology, Public Policy and the Evidence for Alcohol Intoxication, American Psychologist p.1070 (Oct. 1983).

Other criticisms noted regarding the NHTSA field studies include:

"1) The field studies validated the arrest decisions of the officers, not the SFST's themselves;

2) The police officers and the degree of supervision in the field studies were not typical of typical DWI stops;

3) The studies are insufficiently documented for scientific papers;

4) The authors did not report the accuracy of arrest decisions for stops that were observed vs. those that were not, or for SFST's performed under adverse climatic conditions vs. those that were not, and

5) None of the SFST field studies have been published in peer-reviewed scientific journals."

Steve Rubenzer, Ph.D., The Psychometrics and Science of the Standardized Field Sobriety Tests,Part 1, The Champion, 48 (NACDL May 2003), Part 2, The Champion, 40 (NACDL, June 2003) (also available at www.stevenrubenzerphd.com).

Acknowledging that officers trained in conducting SFST's can have their skills degrade over time, and that modifications to the standardized procedures could result in an officer administering SFSTs according to outdated protocols, NHTSA recommends that law enforcement agencies conduct refresher training for SFST instructors and practitioners. NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., Development of a Standardized Field Sobriety Test (SFST) Training Management System, DOT-HS-809-400, (2001).

E. NON-VALIDATED SOBRIETY "TESTS"

A variety of so-called field sobriety tests are employed by police officers in the field during DUI investigations. None of these 'tests' has been statistically validated as reliable, nor have they been accepted in the medical or scientific community for the purpose of diagnosing alcohol intoxication.

The use of the term "test' for these non-validated exercises is a misnomer. Black's Law Dictionary defines a test as "Something by which to ascertain the truth respecting another thing: a criterion, a gauge, a standard, or norm". BLACK'S LAW DICTIONARY, (6 th Ed. 1990) (West Publishing Co.)

Most of these non-validated 'tests' have arisen either from word-of-mouth between officers, or through antiquated methods that seemingly have not been discarded. These include:

1. The "Alphabet Test" - the variations employed are endless, but most involve saying the complete alphabet (without singing it), or stating a portion of the alphabet, such as starting from E and ending at U, or saying the alphabet backwards. In addition to a total lack of validation that the test can accurately separate sober individuals from those who are under the influence, common problems with this test include that many persons have not stated the alphabet since childhood, many persons do not speak English as their primary language, and that the inability to say the alphabet may be a product of sheer nervousness. Additionally, there has not been any standardization in scoring this exercise for DUI purposes.

2. The "Finger-to-Nose Test" - having its origin somewhere in the 1950's, this test seeks to have a person touch the tip of his nose with the tip of his finger, while tilting his head back as far as possible and keeping his eyes closed. The officer then calls out each hand, left, right, left, right, and then right left in an attempt to confused the subject. Besides a lack of validation, this exercise does not use standardized clues or scoring in order to establish what is a "pass" or "fail".

3. The "Pick-up-Coins Test" - most commonly used by the Chicago Police Department up until the 1970's, this test required the suspect to pick up the correct coin called by the officer (i.e. penny, dime, nickel, quarter).

4. The "Rhomberg Test" - having its origin in the detection of persons under the influence of drugs, the suspect is asked to close his eyes and tell the officer when 30 seconds have passed. The theory claimed is that a person under the influence of amphetamines will think 30 seconds has passed too quickly, while a central nervous depressant will cause the person to think that 30 seconds has passed too slowly. This "test" has yet to be accepted by the medical or scientific community.

5. The "Finger-to-Thumb Test" - the suspect is asked to touch his thumb to each fingertip in correct sequence starting with the index finger, and asked to count out loud "Four, three, two, one, one, two, three, four" and so forth.

6. The "Hand-pat Test" - the suspect opens the palm of the first hand upright, and then takes the other hand and pats his palm, flipping his second hand from palm to backside and so forth, sometimes while counting.

 

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KSA 8-1567  - The Kansas DUI Statute

8-1567.   Driving under influence of alcohol or drugs; blood alcohol concentration; penalties. (a) No person shall operate or attempt to operate any vehicle within this state while:

      (1)   The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;

      (2)   the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;

      (3)   under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;

      (4)   under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or

      (5)   under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.

      (b)   No person shall operate or attempt to operate any vehicle within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.

      (c)   If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.

      (d)   Upon a 1st conviction of a violation of this section, a person shall be guilty of a class B, nonperson misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment, or in the court's discretion 100 hours of public service, and fined not less than $500 nor more than $1,000. The person convicted must serve at least 48 consecutive hours' imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.

      In addition, the court shall enter an order which requires that the person enroll in and successfully complete an alcohol and drug safety action education program or treatment program as provided in K.S.A. 8-1008, and amendments thereto, or both the education and treatment programs.

      (e)   On a 2nd conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $1,500. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.

      As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments thereto.

      (f) (1)   On the 3rd conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.

      (2)   The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.

      The court shall also require as a condition of parole that such person enter into and complete a treatment program for alcohol and drug abuse as provided by K.S.A. 8-1008, and amendments thereto.

      (g) (1)   On the 4th or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 72 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.

      (2)   The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.

      At the time of the filing of the judgment form or journal entry as required by K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a certified copy to be sent to the officer having the offender in charge. The law enforcement agency maintaining custody and control of a defendant for imprisonment shall cause a certified copy of the judgment form or journal entry to be sent to the secretary of corrections within three business days of receipt of the judgment form or journal entry from the court and notify the secretary of corrections when the term of imprisonment expires and upon expiration of the term of imprisonment shall deliver the defendant to a location designated by the secretary. After the term of imprisonment imposed by the court, the person shall be placed in the custody of the secretary of corrections for a mandatory one-year period of postrelease supervision, which such period of postrelease supervision shall not be reduced. During such postrelease supervision, the person shall be required to participate in an inpatient or outpatient program for alcohol and drug abuse, including, but not limited to, an approved aftercare plan or mental health counseling, as determined by the secretary and satisfy conditions imposed by the Kansas parole board as provided by K.S.A. 22-3717, and amendments thereto. Any violation of the conditions of such postrelease supervision may subject such person to revocation of postrelease supervision pursuant to K.S.A. 75-5217 et seq., and amendments thereto and as otherwise provided by law.

      (h)   Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had one or more children under the age of 14 years in the vehicle at the time of the offense shall have such person's punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this section or an ordinance which prohibits the acts that this section prohibits. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.

      (i)   The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.

      (j)   In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.

      (k) (1)   Except as provided in paragraph (5), in addition to any other penalty which may be imposed upon a 1st conviction of a violation of this section, the court may order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.

      (2)   The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.

      (3)   Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:

      (A)   Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and

      (B)   whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.

      (4)   Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.

      (5)   As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.

      (l) (1)   Except as provided in paragraph (3), in addition to any other penalty which may be imposed upon a 2nd or subsequent conviction of a violation of this section, the court shall order that each motor vehicle owned or leased by the convicted person shall either be equipped with an ignition interlock device or be impounded or immobilized for a period of two years. The convicted person shall pay all costs associated with the installation, maintenance and removal of the ignition interlock device and all towing, impoundment and storage fees or other immobilization costs.(2)   Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization. (3)   As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than two years from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease. (m)   The court shall report every conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings or a complaint alleging a violation of this section to the division. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.

      (n)   For the purpose of determining whether a conviction is a 1st, 2nd, 3rd, 4th or subsequent conviction in sentencing under this section: (1)   "Conviction" includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section; (2)   "conviction" includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution; (3)   any convictions occurring during a person's lifetime shall be taken into account when determining the sentence to be imposed for a 1st, 2nd, 3rd, 4th or subsequent offender; (4)   it is irrelevant whether an offense occurred before or after conviction for a previous offense; and (5)   a person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, and amendments thereto, or an ordinance which prohibits the acts of this section, and amendments thereto, only once during the person's lifetime.

      (o)   Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person's driving privileges as provided by K.S.A. 8-1014, and amendments thereto.

      (p) (1)   Nothing contained in this section shall be construed as preventing any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited or made unlawful by this act as unlawful or prohibited in such city or county and prescribing penalties for violation thereof. Except as specifically provided by this subsection, the minimum penalty prescribed by any such ordinance or resolution shall not be less than the minimum penalty prescribed by this act for the same violation, and the maximum penalty in any such ordinance or resolution shall not exceed the maximum penalty prescribed for the same violation.

      Any such ordinance or resolution shall authorize the court to order that the convicted person pay restitution to any victim who suffered loss due to the violation for which the person was convicted. Except as provided in paragraph (5), any such ordinance or resolution may require or authorize the court to order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.

      (2)   The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.

      (3)   Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:(A)   Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and (B)   whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.

      (4)   Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.

      (5)   As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.

      (q)   No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining.

      (r)   The alternatives in subsections (a)(1), (a)(2) and (a)(3) may be pled in the alternative, and the state, city or county, shall not be required to, may elect 1 or 2 of the 3 prior to submitting the case to the fact finder.

      (s)   Upon a 4th or subsequent conviction, the judge of any court in which any person is convicted of violating this section, may revoke the person's license plate or temporary registration certificate of the motor vehicle driven during the violation of this section for a period of one year. Upon revoking any license plate or temporary registration certificate pursuant to this subsection, the court shall require that such license plate or temporary registration certificate be surrendered to the court.

      (t)   For the purpose of this section: (1) "Alcohol concentration" means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.

      (2)   "Imprisonment" shall include any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the board of county commissioners or the governing body of a city.

      (3)   "Drug" includes toxic vapors as such term is defined in K.S.A. 65-4165, and amendments thereto.

      (u)   The amount of the increase in fines as specified in this section shall be remitted by the clerk of the district court to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of remittance of the increase provided in this act, the state treasurer shall deposit the entire amount in the state treasury and the state treasurer shall credit 50% to the community alcoholism and intoxication programs fund and 50% to the department of corrections alcohol and drug abuse treatment fund, which is hereby created in the state treasury.

      (v)   Upon every conviction of a violation of this section, the court shall order such person to submit to a pre-sentence alcohol and drug abuse evaluation pursuant to K.S.A. 8-1008, and amendments thereto. Such pre-sentence evaluation shall be made available, and shall be considered by the sentencing court.

 

 

 

 

 

 

 

 

 

 

 

KSA 8-1014, the Kansas Statute dealing with driver’s license suspensions:

Suspension and restriction of driving privileges for test refusal, test failure or alcohol or drug-related conviction; increased penalties for blood or breath alcohol concentration of .15 or greater; ignition interlock device. (a) Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person refuses a test, the division, pursuant to K.S.A. 8-1002, and amendments thereto, shall:

      (1)   On the person's 1st occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

      (2)   on the person's 2nd occurrence, suspend the person's driving privileges for two years;

      (3)   on the person's 3rd occurrence, suspend the person's driving privileges for three years;

      (4)   on the person's 4th occurrence, suspend the person's driving privileges for 10 years; and

      (5)   on the person's 5th or subsequent occurrence, revoke the person's driving privileges permanently.

      (b) (1)   Except as provided by subsections (c) and (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state, the division shall:

      (A)   On the person's 1st occurrence, suspend the person's driving privileges for 30 days, then restrict the person's driving privileges as provided by K.S.A. 8-1015, and amendments thereto, for an additional 330 days;

      (B)   on the person's 2nd, 3rd or 4th occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device; and

      (C)   on the person's 5th or subsequent occurrence, driving privileges shall be permanently revoked.

      (2)   Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state and the person's blood or breath alcohol concentration is .15 or greater, the division shall:

      (A)   On the person's 1st occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

      (B)   on the person's 2nd occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for two years to driving only a motor vehicle equipped with an ignition interlock device;

      (C)   on the person's 3rd occurrence, suspend the person's driving privileges for one year and at the end of the suspension restrict the person's driving privileges for three years to driving only a motor vehicle equipped with an ignition interlock device;

      (D)   on the person's 4th occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for four years to driving only a motor vehicle equipped with an ignition interlock device; and

      (E)   on the person's 5th or subsequent occurrence, driving privileges shall be permanently revoked.

      (3)   Whenever a person's driving privileges have been restricted to driving only a motor vehicle equipped with an ignition interlock device, proof of the installation of such device, for the entire restriction period, shall be provided to the division before the person's driving privileges are fully reinstated.

      (c)   Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person who is less than 21 years of age fails a test or has an alcohol or drug-related conviction in this state, the division shall:

      (1)   On the person's 1st occurrence, suspend the person's driving privileges for one year. If the person's blood or breath alcohol concentration is .15 or greater, the division shall at the end of the suspension, restrict the person's driving privileges for 1 year to driving only a motor vehicle equipped with an ignition interlock device;

      (2)   on the person's 2nd and subsequent occurrences, penalties shall be imposed pursuant to subsection (b).

      (d)   Whenever the division is notified by an alcohol and drug safety action program that a person has failed to complete any alcohol and drug safety action education or treatment program ordered by a court for a conviction of a violation of K.S.A. 8-1567, and amendments thereto, the division shall suspend the person's driving privileges until the division receives notice of the person's completion of such program.

      (e)   Except as provided in K.S.A. 8-2,142, and amendments thereto, if a person's driving privileges are subject to suspension pursuant to this section for a test refusal, test failure or alcohol or drug-related conviction arising from the same arrest, the period of such suspension shall not exceed the longest applicable period authorized by subsection (a), (b) or (c), and such suspension periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of such suspension as authorized by subsection (a), (b) or (c), such person shall receive credit for any period of time for which such person's driving privileges were suspended while awaiting any hearing or final order authorized by this act.

      If a person's driving privileges are subject to restriction pursuant to this section for a test failure or alcohol or drug-related conviction arising from the same arrest, the restriction periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of restriction, the person shall receive credit for any period of suspension imposed for a test refusal arising from the same arrest.

      (f)   If the division has taken action under subsection (a) for a test refusal or under subsection (b) or (c) for a test failure and such action is stayed pursuant to K.S.A. 8-259, and amendments thereto, or if temporary driving privileges are issued pursuant to K.S.A. 8-1020, and amendments thereto, the stay or temporary driving privileges shall not prevent the division from taking the action required by subsection (b) or (c) for an alcohol or drug-related conviction.

      (g)   Upon restricting a person's driving privileges pursuant to this section, the division shall issue a copy of the order imposing the restrictions which is required to be carried by the person at any time the person is operating a motor vehicle on the highways of this state.

      (h)   Any person whose license is restricted to operating only a motor vehicle with an ignition interlock device installed may operate an employer's vehicle without an ignition interlock device installed during normal business activities, provided that the person does not partly or entirely own or control the employer's vehicle or business.

 

 

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