In the state of Kansas, driving under the influence (DUI) or driving while impaired (DWI) is an offense that is punishable by law. Anyone operating a motor vehicle who has a Blood Alcohol Concentration (BAC) of 0.08% or higher is considered in violation of DUI offense.
Kansas DUI – statute(s) K.S.A. § 8-1567.
Kansas DUI – standard
- “Driving under the influence is operating or attempting to operate any vehicle within this state while . . . under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle.” K.S.A. § 8-1567(a)(4).
Kansas DUI – applicable substances
- Any drug or combination of drugs.
Kansas DUI – affirmative defense
- The fact that a person “is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.” K.S.A. § 8-1567(d).
Kansas Per se – statute(s)
- Per se – standard N/A
Kansas Per se – applicable substances
- N/A Per se – affirmative defense N/A
Kansas Implied consent – applicable drivers
- Person who operates or attempts to operate a vehicle in Kansas. K.S.A. § 8-1001(a).
Kansas Implied consent – tests authorized
- One or more tests of the person’s blood, breath, urine or other bodily substance. K.S.A. § 8-1001(a). Implied consent – basis for test
- Preliminary screening of breath or saliva may be given if LEO has “reasonable suspicion to believe” the person is operating a vehicle while under the influence. K.S.A. § 8-1012(b).
- LEO “shall” request test if LEO has “reasonable grounds to believe” the driver was operating a vehicle in violation of drugged driving laws and either: (1) the driver was arrested for any offense; or (2) the driver was involved in a motor vehicle accident that resulted in property or non-serious personal injury. K.S.A. § 8-1001(b)(1).
- LEO shall also request test if driver was operating a motor vehicle when it was “involved in an accident or collision resulting in serious injury or death of any person” and the driver could be cited for any traffic offense. K.S.A. § 8-1001(b)(2). A recent Kansas intermediate appellate court has found this provision unconstitutional in State v. Declerck, 317 P.3d 794 (Kan. Ct. App. 2014).
Kansas Implied consent – evidence of refusal
- Refusal is admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs. K.S.A. § 8-1001(n).
Kansas Implied consent – administrative / civil penalty for refusal
- First refusalà driver’s license suspended for one year; use of IID for two years after suspension.
- Second refusalà driver’s license suspended for one year; use of IID for three years after suspension. Third refusalà driver’s license suspended for one year; use of IID for four years after suspension.
- Fourth refusalà driver’s license suspended for one year; use of IID for five years after suspension.
- Fifth or subsequent refusalà driver’s license suspended for one year; use of IID for 10 years after suspension. K.S.A. § 8-1014(a).
Kansas Implied consent – criminal penalty for refusal
- Per K.S.A. § 8-1025, there is a criminal violation of refusing a test if a person refuses a test for a second time, or refuses a test after having any prior DUI violation. A first or second conviction is a Class A nonperson misdemeanor (unless prior conviction within 10 years) and a third or subsequent violation is a nonperson felony. Recently, the Kansas Supreme Court has held this statute to be unconstitutional in State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016).
