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DUI Frequently Asked Questions in Kansas

What are the elements of a DUI offense?

Under Kansas law, a person is guilty of a common driving under the influence if the person was operating or attempting to operate a vehicle while having an alcohol concentration of .08 or higher or while under the influence of alcohol or drugs that render the person incapable of safe driving. Alcohol concentration is the number of grams of alcohol per 100 milliliter’s of blood or per 210 liters of breath.  Additionally, Kansas law allows urine as well as saliva testing. Law enforcement may test for the alcohol concentration within two hours of operating or attempting to operate a vehicle.

Law enforcement officers may request a person to submit to test(s) if the officer has reasonable grounds to believe that the driver is under the influence of alcohol or drugs, driving commercial vehicle, or under the age of 21.  Also, if the person was operating or attempting to operate a vehicle and have been involved in an accident or collision where the person could be cited for a traffic offense the traffic violation will satisfy probable cause.

It is also a crime in Kansas to operate or attempt to operate a vehicle if the person is under the influence of drugs to a degree that makes the person incapable of safely driving a vehicle.  Also, it is a crime for habitual users of alcohol or drugs to operate a vehicle.  No level is needed to convict for drug related charges.

Can you get a DUI for being on prescription drugs?                                                   

Under Kansas law, if a person is charged with common DUI involving drugs, the fact that the person is or has been entitled to use the drug lawfully shall not constitute a defense against the charge. Commercial DUI laws have recently been updated which removes legal use of drugs as a defense.  Therefore, if a blood test were to show that the person was under the influence of drugs, they will be in violation of the law regardless of whether or not they are using the drug legally or illegally. 

Furthermore, in Kansas no person shall operate or attempt to operate a vehicle within the state if the person is a habitual user of any narcotic, hypnotic, somnifacient, or stimulating drug.  Therefore, even though one may be prescribed a drug for daily use this will not prevent a driving under the influence charge from being upheld.

Can I be stopped and arrested for DUI even if the vehicle was not moving?

Under Kansas law, a person can be stopped and arrested for DUI even if the vehicle was not moving.  The law enforcement officer may stop a person who they reasonably believe is committing or about to commit a crime.  Also the officer only needs reasonable belief that the person was attempting to operate a vehicle while under the influence of alcohol.  Therefore, if an officer witnesses a person stumbling to their car and watch them open the door, sit down in the driver’s seat, and turn on the engine, the officer may very well have reasonable belief that the person was attempting to operate a vehicle while under the influence of alcohol and about to commit a crime (i.e. driving under the influence).

Do I have the right to talk to an attorney before I give a sample?

Under Kansas law, a person does not have a right to talk to an attorney before giving a sample.  If a person is driving in Kansas, they are deemed to having consented to a preliminary screening test and if they refuse to do so, it is a traffic infraction that may have consequences on their driving privileges.  However, the officer must have probable cause to request the sample.

Do I have to give a blood or urine sample?

Yes, under Kansas law any person who has driven has implied consent to take a test to determine if they are under the influence as long as the probable cause requirements are satisfied.   Kansas allows the sample to come from an analysis of the breath, blood, urine, saliva or other bodily substance to determine if the person is under the influence of alcohol.  The state does have requirements for who can conduct the test.  In order to conduct a blood test it must be administered by a person licensed to practice medicine, surgery, a licensed physician’s assistant, a registered or licensed nurse, or any qualified medical technician, or a phlebotomist.  The blood test must be carried out as soon as possible.

Urine samples are also allowed under Kansas law.  They have the same requirements as a blood test but the collection must be done by a person of the same sex.  They should be conducted out of view of any others unless they waive their privacy rights.  This type of evidence is admissible as evidence in a trial.

Do I have to submit to a field sobriety test?

Kansas law requires that an individual complete a preliminary screening test if the officer reasonably believes that the person is under the influence of alcohol or drugs.  After such preliminary screening the officer may request other tests to supplement evidence that the person is under the influence.  These tests may include standard sobriety tests to confirm that the person is or is not influenced by drugs or alcohol.  Consent is deemed implied for both qualitative and quantitative tests; therefore refusal is a traffic infraction.

What are the most recent updates regarding DUI in Kansas?

With the passing of Senate Bill 6, effective in July of 2011, penalties and fees have been increased for driving under the influence.  Further, the testing windows have been increased, implied consent for urine samples has been updated, saliva testing is now allowed, and expungement is now allowed after ten years.  It appears that many of the changes make getting a DUI charge more expensive and even more burdensome for the defendant, hopefully to deter more people from driving while intoxicated.


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