How Is A DUI Defined In Kansas?
A first time DUI is considered a Class B misdemeanor. It is punishable by up to six months in jail. A second time offense, a person may or may not have to serve any jail time. Frequently, the majority of the cases in a first time DUI, people can be offered what are called diversions in Kansas. It is a contract between the defendant and the prosecutor to not prosecute the criminal defense of a DUI, but to defer the prosecution if they complete the requirements under the diversion, then they would not have a conviction for a DUI. The person entering into the diversion, this would go would on their record, and it would count against them if they had other offenses. It still has an impact. It can impact their ability to drive and possibly restrictions on their driving privileges.
A second time DUI is a Class A misdemeanor. It is punishable by up to one year in the county jail. Up to a $2,500 fine. The court must sentence the person to ninety days in jail, and the judge may put them on a house arrest or work release program after they would serve five consecutive days in jail. A third time DUI or subsequent DUI is called a non-red felony. It is punishable by up to one year in jail, and there is a mandatory jail sentence of ninety days. In felony DUIs the judges tend to sentence the person to some sort of confinement. Depending upon the judge I have seen, it is as low as ninety days house arrest, and I have seen people do a year in jail real time. The repeat offenders are seen as no different than a person who shoots a gun into a crowd.
It is just a matter of chance as if a person gets behind the wheel with too much alcohol, and they risk the chance of hurting or killing someone.
How Long Have You Been Handling DUI Cases?
For thirty-one years. I started my career as a prosecutor, and I spent seven years as a prosecutor, and after taking somewhat of a hiatus from the practice of law for three years, I came back and I started working on criminal defense cases. Now I do exclusively criminal defense which includes most of my cases. Out of all the cases I have, most of my cases are driving under the influence of alcohol issues. Now referred to, driving under the influence of drugs cases has been added.
Have You Seen Laws Pertaining To DUI Change Over The Years?
It seems in Kansas they want to change the DUI laws every couple of years. Both in the penalty for the DUI, now what we would call collateral consequences. The effects on driving privileges and the ability to have certain kinds of employment have certainly changed over thirty years for most people.
What Is The Prosecutor Looking To Prove In A DUI case?
Certainly as a former prosecutor I understand the prosecutor’s perspective on things. Or at least I have a better idea of how prosecutors see these cases. Certainly the judge’s attitude towards DUIs has changed dramatically over the last thirty years. Thirty years ago DUIs were considered a serious traffic offense, but it was still a traffic offense. People thought we could all do this, and it is not such a big thing back then. Now the attitudes of the judges are that it is a serious offense. We certainly see those unfortunate circumstances where somebody dies as a result of an accident involving alcohol or drugs and it has impacted how judges try these cases and the seriousness in which they take them.
Do Most DUI Defendants Have High BAC Levels?
The limit in Kansas is .08% blood alcohol content. I find a lot of people have a .090% to .12%, or .13% blood alcohol content, but almost universally the people who come in with those blood alcohol levels say, you know, I was perfectly fine to drive, I do not think there was anything wrong. So a person’s interpretation of their level of intoxication, it is not a good indication of what their alcohol level really is. I have some clients who have blood high alcohol content. I have got probably three or four cases where I have people with over .40% BAC’s, which is four times the legal limit. It is very easy to get a DUI because the perception of intoxication is no measure of the actual level of intoxication, particularly at low levels.
The National Highway Traffic Safety Institute that measures a lot of different things, but one of the things they did is they developed our standards by which we determine when people are intoxicated to the level that they cannot safely operate a motor vehicle. All of their testing is done, and it is standardized at a .10% level, because at one time based upon scientific research, we found that the average person loses the ability to safely operate a motor vehicle at approximately .10% blood alcohol content. It is obvious that legislature, for whatever reasons they chose, decided that they were going to put in a margin of error, and they lowered it from .10%, that is what the standard was when I started practicing law years ago, and they lowered it down to .08%.
So .08% is four beers. Four beers, four glasses of wine, four single shot mixed drinks will get a person over .08% or can get a person over .08%. So it is a pretty low standard now a days.
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