DUI and DWI

DUIs and DWIs are serious traffic infractions. One of the first things people usually ask us about these charges is “What is the difference between a DWI (driving while intoxicated) and a DUI (driving under the influence)?” The answer is that there is little difference. Missouri uses the term DWI and Kansas uses the term DUI. Many states use the term OUI (operating under the influence). They all relate to the same offense commonly referred to as drinking and driving.

An important thing to remember is that a DWI or DUI charge can relate to drug usage. Kansas’ and Missouri’s include drivers who are operating the vehicle while “under the influence of drugs” or “in a drugged condition.”

The breath and blood tests that prosecutors generally rely on to make their case can involve very complicated Fourth Amendment issues about whether or not the search for and seizure of that evidence was constitutionally permissible. The same is true regarding field sobriety tests (such as having a driver follow the officer’s finger from side to side with his eyes while keeping his head still, touching the tip of a pen, walking a straight line, reciting the alphabet without singing, etc.). An experienced attorney can spot these issues and keep any improperly-obtained evidence out of the case, making the state’s case very difficult to prove.

Refusing a breath or blood test can also result in the loss of your license for one year, even if you are completely sober. There are limited grounds on which to challenge such penalties, but there are ways to challenge them.

Also, if convicted, both Kansas and Missouri has the authority to require you to place an ignition interlock in your vehicle. This is an expensive endeavor to install, as well as to maintain with monthly maintenance costs for the device.

 

DUI – Kansas

Kansas’ DUI laws underwent significant changes in the 2012 legislative update to the criminal code. Some pertinent information about the Kansas DUI laws is laid out below.

A first conviction in Kansas is a class B, nonperson misdemeanor. The convicted person shall be sentenced to not less than 48 consecutive hours nor more than six months’ imprisonment, and fined not less than $750 nor more than $1,000. The sentence may also place the convicted person under house arrest to serve the remainder of the sentence after the person has served 48 consecutive hours’ imprisonment. Upon the first failed breath test (or other test showing an illegal amount of alcohol in the body while driving), your license will be suspended for 30 days, after which you will likely be required to install an ignition interlock device and keep it in your vehicle for 180 days.

A second conviction in Kansas is a class A, nonperson misdemeanor. The convicted person shall receive not less than 90 days imprisonment, nor more than one year, and fined not less than $1,250 nor more than $1,750. The convicted person must serve at least five days imprisonment before probation, suspension of sentence, or reduction of sentence can be imposed. Upon the second failed breath test (or other test showing an illegal amount of alcohol in the body while driving), your license will be suspended for one year, after which you will likely be required to install an ignition interlock device and keep it in your vehicle for one year.

A third conviction in Kansas is a class A, nonperson misdemeanor. If it is the third conviction in the preceding 10 years, not counting any period of incarceration, it is a nonperson felony. Both convictions, whether a misdemeanor or a felony, carry a prison sentence of not less than 90 days and not more than one year and a fine of not less than $1,750 nor more than $2,500. There is again 48-hour mandatory jail time before you can be placed in a work release or house arrest program. Upon the third failed breath test (or other test showing an illegal amount of alcohol in the body while driving), your license will be suspended for one year, after which you will likely be required to install an ignition interlock device and keep it in your vehicle for two years.

A fourth (or subsequent) conviction is a nonperson felony, with the same sentence and fine ranges as the third conviction. There is a 72-hour minimum mandatory jail time for a fourth or subsequent conviction, before a person may be placed in work release or house arrest. Upon the fourth failed breath test (or other test showing an illegal amount of alcohol in the body while driving), your license will be suspended for one year, after which you will likely be required to install an ignition interlock device and keep it in your vehicle for three years.

Upon the fifth failed breath test (or other test showing an illegal amount of alcohol in the body while driving), your license will be suspended for one year, after which you will likely be required to install an ignition interlock device and keep it in your vehicle for ten years.

It is extremely important to know that in determining whether a conviction is a first, second, third, fourth, or subsequent conviction, the courts can only consider convictions dating back to July 1, 2001. The court can consider DUIs prior to July 1, 2001 when determining a sentence.

For example, if the court determine this is your first DUI since July 1, 2001, but you had multiple DUIs before that date, the court can only consider this a “first conviction” but your prior DUIs can be considered when deciding where to sentence you in the 2- to 60-day-range for imprisonment and the $750-1,000 range for fines.

Kan. Stat. Ann. §§ 8–1015, 8–1567.

In Kansas, after you have been tested for intoxication, or have refused the test, the officer will take your driver’s license (if you have it on you) and give you a pink form titled “Officer’s Certification and Notice of Suspension,” commonly referred to as a DC-27. You then have 14 days to make a written request for an administrative hearing, which is your opportunity to challenge the suspension of your license. It is important that you consult with an attorney as soon as possible after your arrest, because if you do not request a hearing, or make it improperly, your license will be automatically suspended.

 

DWI – Missouri

Driving while intoxicated is a serious charge that can have devastating consequences. While first time DWI convictions are usually misdemeanors, you still face up to six months in jail, the loss of your license, license restriction, and up to $500 in fines. If your DWI involves an accident, you could spend 2–7 years in jail, be required to pay a $5,000 fine, and/or lose your Missouri driver’s license for five years.

Mo. Rev. Stat. §§ 577.010, 577.012.

In Missouri, you have 15 days from the date your Notice of Suspension/Revocation is issued to request an administrative hearing. This is your opportunity to challenge the suspension/revocation of your license. Make sure to consult with an attorney as soon as you receive the Notice.

For more information on DWIs, visit the Missouri DMV website.