Kansas DUI License Suspensions, Implied Consent and Driving

In addition to the criminal penalties that may be imposed upon a DUI conviction in the state of Kansas, civil administrative penalties may also result. Any administrative license suspension that occurs will be in addition to the license suspension that may result from a criminal conviction. The following information explains the civil administrative process and penalties that may occur as a result of a DUI offense. For more information on the criminal penalties and process, click on the Kansas Penalties and Process tabs.

KANSAS IMPLIED CONSENT

By accepting the privilege to drive within the state of Kansas, a person is deemed to have given his/her consent to one or more tests of their blood, breath, urine, or other bodily substance to detect the presence of alcohol and/or drugs. Refusal to submit to a chemical test requested by a police officer will result in the suspension of the person's driving privileges as explained below. There is no right to an attorney prior to taking a chemical test. The police are required to notify a DUI suspect prior to testing of the consequences of a refusal, including the fact that a refusal to submit to testing will be admissible against them at trial. The police must also notify the suspect of their right to have independent testing in addition to the testing conducted by the police.

ADMINISTRATIVE LICENSE SUSPENSION PENALTIES

MINORS UNDER THE AGE OF 21 - Minors under the age of 21 with a BAC between .02 - .08 will have their driving privileges suspended for a term of 30 days for a first offense, and a term of one year for a second or subsequent offense. Minors with a BAC of .08 or higher will have their driving privileges suspended for one year for a first, second, third or fourth offense, and permanent revocation for a fifth or subsequent offense. Minors with a BAC over .150 will have their license suspended for one year and then restricted for a year to driving only with an ignition interlock device installed in their vehicle. Minors who refuse chemical testing will be subject to a one year suspension.

COMMERCIAL VEHICLE DRIVERS - If a person with a commercial driver's license (CDL) refuses to submit or fails a chemical test he/she will have their CDL suspended for one year for a first offense. The CDL will lose his/her license permanently for life upon a second occurrence, even if the person was not driving a commercial vehicle at the time of the offense.

TEST REFUSAL - There is no constitutional right to refuse chemical testing in Kansas. Persons who refuse chemical testing will have their driving privileges suspended for one year for a first refusal, two years for a second refusal, three years for a third refusal, 10 years for the fourth refusal, and permanent revocation for a fifth or subsequent refusal.

TEST FAILURE - Persons who submit to a chemical test that produces a result of .08 or higher will have their driving privileges suspended for 30 days for a first offense, one year for a second, third, or fourth offense, and permanent revocation for a fifth or subsequent offense. If the person's BAC was .15 or higher upon a first offense, their driving privileges will be suspended for one year.


LICENSE SUSPENSION/ADMINISTRATIVE REVIEW PROCESS

Under Kansas DUI law, upon a chemical test refusal or "failure" the police must serve notice to the DUI suspect that his/her license or driving privileges are suspended. The suspension will take effect upon the 30th day following the date of notice. Persons who refuse chemical testing or who are still in custody after the chemical test result shows a BAC of .08 or higher must surrender their license to the police. The person will be issued a temporary license that will be valid for 30 days. Persons not in custody at the time chemical test results are obtained will be issued a temporary license upon service of notice of their license suspension. Every DUI suspect whose license has been suspended must be told of the right to an administrative hearing to contest the suspension.

An administrative hearing with the Kansas Department of Revenue must be requested within 10 days following the date of notice of the license suspension. Failure to request a hearing within 10 days will result in a waiver of the right to review and the automatic suspension of the person's license. If a hearing is timely requested, the temporary driving permit issued by the police will remain valid until the 30th day following the effective date of the decision made by the Department. The hearing will occur by telephone conference with a representative of the Department unless the request was for an in person hearing. The hearing will be conducted in the county where the arrest took place, or a county adjacent to it.

No later than five days prior to the date of the hearing, the DUI offender or his attorney will receive prehearing discovery, which may include the following documents: officer's certification and notice of suspension; copies of documents indicating test results of any blood or breath test that was administered; a copy of the affidavit showing certification of the officer and breath test instrument; and a copy of the Kansas department of health and environment breath testing protocol checklist. The Department will also issue an order allowing the DUI offender or his attorney to review any video or audio tape of the event that was recorded. A copy of the video or audio may be obtained upon request and payment of a reasonable fee (under $25).

At the hearing the DUI offender, any police officer who signed the certification form, and one other witness who was present at the time of the certification may be called to testify. In refusal cases, the hearing will be limited to the following issues: (1) Whether a law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle while having alcohol or other drugs in such person's system; (2) whether the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death; (3) whether a law enforcement officer had presented the person with the oral and written notice; and (4) whether the person refused to submit to and complete a test as requested by a law enforcement officer.

In cases where a chemical test was "failed," the issues at the hearing are limited to the determination of whether (1) a law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle while having alcohol or other drugs in such person's system; (2) the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death; (3) a law enforcement officer had presented the person with the oral and written notice; (4) the testing equipment used was certified by the Kansas department of health and environment; (5) the person who operated the testing equipment was certified by the Kansas department of health and environment; (6) the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment; (7) the test result determined that the person had an alcohol concentration of .08 or greater in such person's breath; and (8) the person was operating or attempting to operate a vehicle.

In cases involving the alleged "failure" of a blood test, the issues at the hearing are limited to the determination of whether: (1) a law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle while having alcohol or other drugs in such person's system; (2) the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death; (3) a law enforcement officer had presented the person with the oral and written notice; (4) the testing equipment used was reliable; (5) the person who operated the testing equipment was qualified; (6) the testing procedures used were reliable; (7) the test result determined that the person had an alcohol concentration of .08 or greater in such person's blood; and (8) the person was operating or attempting to operate a vehicle.

The DUI offender has the burden of proving by a preponderance of the evidence that the facts set out in the officer's certification are false or insufficient and that the order suspending or suspending and restricting offender's driving privileges should be dismissed. The representative of the Department will enter an order either affirming or denying the order of suspension.  If the suspension is affirmed, the license suspension will begin on the 30th days following the effective date of the order of suspension.

A Kansas DUI offender may further appeal the administrative suspension by filing a petition for review of the hearing. If such an appeal is requested, the DUI offender's temporary license will remain valid until the decision on the petition for review is final. The action for review will be by trial de novo (looking at the issues anew) to the court. The court will take testimony, examine the facts of the case and determine whether suspension should be upheld or dismissed. The DUI offender has the burden to show that the decision of the agency should be set aside.