Like all states, Kansas prohibits driving while under the influence of drugs and alcohol. However, Kansas law defines "under the influence" and "driving" in ways that differ from many other states.
This article will break down these terms and explain what is required to actually be convicted of DUI in Kansas. For those facing DUI charges, this article also outlines the possible penalties one may face if convicted and even some options to avoid a conviction.
To convict a driver of DUI in court, prosecutors must prove the driver operated or attempted to operate a vehicle:
In other words, a DUI conviction can be based on BAC or actual impairment.
Most DUI investigations start with a traffic stop of a moving vehicle due to a traffic violation. In these situations, there's no question that the driver was operating a vehicle.
However, a driver can also be convicted of a DUI if he or she was just attempting to operate a vehicle. Attempt to operate generally requires the person to be in a position to immediately engage the vehicle and take some steps to engage or operate. In determining whether a driver attempted to operate a vehicle, the court will generally look at whether:
Kansas courts have said that an attempt to operate includes any "overt act to engage" and does not require movement.
Under Kansas law, a driver who is incapable of safely driving due to the consumption of drugs or alcohol is considered to be "under the influence." Holding a physician's prescription for an intoxicating substance is not a defense to an intoxicated driving charge.
A driver can also be convicted of DUI if he or she has a BAC of .08% or more. A DUI based on BAC is often called a "per se" offense. A per se DUI charge does not require proof of unsafe driving or actual impairment.
The penalties for a DUI conviction generally vary based on the driver's number of prior convictions. While some nuances apply, Kansas generally considers all prior DUI convictions and diversions within the driver's life as prior offenses.
Generally, a first, second, or third DUI conviction will be charged as a misdemeanor. But a third offense will be charged as a felony if it occurred within ten years of a prior.
The chart below outlines the range of jail time and fines for a first, second, and third misdemeanor DUI conviction in Kansas.
48 hours to 6 months
120 hours to 12 months
30 days to 1 year
$750 to $1,000
$1,250 to $1,750
$1,750 to $2,500
Prior to sentencing, a person convicted of a DUI must obtain an alcohol and drug evaluation. The licensed evaluator will determine the level of chemical dependency (if any) and recommend a treatment program to the court.
Typically, the judge will adopt the evaluator's recommendations as conditions of the offender's probation.
Judges generally can suspend part or all of an offender's jail sentence by ordering probation. While on probation, offenders must comply with certain requirements such as treatment and maintaining sobriety. Failure to comply can result in additional jail time.
Generally, offenders must serve the minimum required jail penalty before being placed on probation.
The court can order the offender to complete community service in lieu of part of or all of the required fine. For a first offense, the mandatory 48-hour jail requirement can also be satisfied by completing 100 hours of community service.
There are multiple ways a DUI can be charged as a felony, and there are many ways a DUI offense can lead to other felony charges.
A third-offense DUI that occurs within ten years of a prior offense can be charged as a level 6 felony. While the minimum penalties are unchanged, the maximum jail sentence for a level 6 felony is 46 months and the maximum fine is $100,000.
A fourth or subsequent DUI conviction (regardless of the passage of time) will be charged as a level 6 felony DUI.
A DUI that results in bodily injury to another can lead to a separate charge of aggravated battery. Depending on the severity of the injury, a conviction can result in up to 136 months in prison, a maximum $300,000 in fines, and indefinite license revocation.
Causing the death of another while driving under the influence is considered involuntary manslaughter and carries 38 to 172 months in prison, up to $300,000 fines, and indefinite license revocation.
A driver who's arrested for a DUI will typically face license-related penalties. These penalties vary depending on the number of prior DUI-related incidents as well as the driver's cooperation with testing. In determining the number of prior offenses, test failures, test refusals, diversions, and DUI convictions will be considered.
License-related penalties can result from a DUI arrest and/or conviction.
Kansas's "implied consent" law generally requires all drivers who are lawfully arrested for driving under the influence to submit to breath, blood, or urine testing when requested to do so by an officer. A driver can refuse to comply with the officer's request, but a refusal will generally result in more severe penalties.
When a driver refuses to take a chemical test (or fails to provide a sufficient sample), the officer will seize the driver's license and submit a report to the Division of Motor Vehicles (DMV). Upon reviewing the driver's record, the DMV will suspend the driver's license for one year. After completing the suspension period, the driver will be restricted to only operating a vehicle with an ignition interlock device (IID) for:
Also, prosecutors can use the fact that a driver refused testing in court while trying to prove a DUI charge.
If a driver submits to testing and produces a BAC that's at least .08%, the officer will seize the driver's license and forward a report to the DMV. After reviewing the driving record, the DMV will suspend the driver's license for:
If the driver had a BAC of .15% or more, the penalties will be increased.
The BAC test result will also be forwarded to the prosecutor for use in the DUI criminal trial.
A driver will also face license suspension if convicted of the DUI in court. The suspension periods are identical to a test failure, but do not stack together. In other words, the driver will serve only the longer of the license penalties, whether from test failure, test refusal, or DUI conviction.
Drivers facing license suspension are generally eligible to apply for a restricted IID license. This license provides temporary driving privileges during the suspension period but requires a $100 application fee and the installation of an IID.
In Kansas, drivers who are under 21 years of age are prohibited from driving with a BAC of .02% or more. Drivers who are caught violating this rule will face license suspension and fees.
The driver's license will be suspended for 30 days for a first offense, followed by 180 days with an IID. Any subsequent violations will result in a one-year suspension (but an IID license may be available).
The offender must pay a $100 reinstatement fee after completing the suspension period and provide proof of motor vehicle liability insurance.
Drivers facing a first-offense DUI or underage DUI can possibly get the charges dismissed by completing the state's diversion program. Offering a diversion program is only within the discretion of the prosecutor and is generally not granted for impaired driving that resulted in injuries or property damage.
This program generally requires the payment of fines, completion of treatment, sobriety monitoring, and avoidance of criminal violations. The supervision period is normally one year. Drivers who complete the program can get the DUI charges completely dismissed and sealed.
While some states allow DUI charges to be dismissed or pled down, Kansas prohibits the dismissal or reduction of a DUI charge without an evidentiary basis. If you've been arrested for driving while under the influence in Kansas, you should get in contact with a qualified DUI attorney in your area. An experienced DUI lawyer can help you understand how the law applies in your case and advise you on how best to handle your situation.