Breath Alcohol Tests & DUI in Overland Park
Overland Park DUI Attorney
In Kansas, an individual is considered intoxicated if their blood alcohol concentration (BAC) is at .08% or higher. Under current law (as of July 1, 2011), a person that tests at a level of 0.08 is per se guilty of a criminal DUI IF the test is taken within 3 hours of the operation of a vehicle. This is true whether, or not, the vehicle is driven on a public roadway or on private property. The breath testing instrument approved by the Kansas Department of Health and Environment (KDHE) is, currently, the Intoxilyzer 8000. This instrument is, allegedly, an improvement on the, former, Intoxilyzer 5000 device that was sanctioned by KDHE throughout the 1990's until 2007.
The primary difference in the Intoxilyzer 8000, and the Intoxilyzer 5000, is that the 8000 device is a uses dry gas as a known standard for internal test comparison - as opposed to the liquid solution used by the 5000 device. Thus, the police custodian has less steps in the maintenance of such device in accordance with KDHE standards. The other major difference is that the 5000 device screen the headspace gas (from the breath sample) for three infrared wave spectrums - in comparision to the 5 spectrum analysis in the Intoxilyzer 8000 device.
Regarless, the custodian of records for each Intoxilyzer 8000 device, used throughout the State of Kansas for evidentiary breath testing, must strictly comply with KDHE operation, and procedure, mandates. Failure to do so can be a crucial defense issue to the opposition of the introduction of such breath testing results at trial (in a criminal DUI matter) or in a KDR administrative license suspension hearing in which a BAC of 0.08, or more, is alleged.
Have You Been Stopped for DUI?
If a person is stopped for suspicion of drunk driving, they are commonly given one or more field sobriety tests. Based on how a police officer interprets the results of those tests, the driver may be asked to perform a preliminary breath test (PBT) to check their BAC. This is a portable breath test in which the driver is required to blow into a straw-like device that is hand-held by the law enforcement officer. Please note that the PBT, under current law, pursuant to K.S.A. 8-1012, is only used to assist the officer in the determination of whether there is sufficient evidence to determine probable cause for DUI arrest. Under current law, the PBT test results CANNOT be introduced, as evidence of a criminal DUI - in any criminal DUI trial. The PBT testing, while potentially damaging (on the issue of probable cause for DUI arrest), is merely another pre-arrest tool that can be considered by the law enforcement officer, along with the other field-sobriety tests (and along with the officer's personal observations of the individual) in determining whether there is a basis for arrest.
The field-sobriety testing results, generally, have two distinct meanings. For cases wherein the individual actually agreed to be tested on the Intoxilyzer 8000 device, the field-sobriety tests (FST"S) only serve the purpose of supporting a basis for the officer to request the Intoxilyzer 8000 breath testing. Since the threshold of the arrest standard is so low, it does not take very much evidence to support probable cause for arrest (or reasonable suspicion, of DUI, to support additional BAC testing). Thus, the focus of my defense on a BAC case (0.08 or greater) is, primarily, on the testing procedures first - since exclusion of the BAC test result is absolutely crucial to the defense of a criminal DUI matter that involves BAC testing that is over the permissible limits for BAC allowed for driving in the State of Kansas.
Conversely, in a situation where the individual has refused BAC testing on the Intoxilyzer 8000, the field-sobriety tests take on a whole different meaning. In that situation, other than factors relating to the actual operation of the vehicle (considered with factors suggested by the National Highway Traffic Safety Administration NHTSA), the NHTSA-recognized standardized field-sobriety testing procedures become the major focus by prosecution, and experienced defense attorneys, in a criminal DUI trial setting.
If the arresting officer fails to follow the standardized NHTSA procedures, the field-sobriety testing test results may be excluded from consideration by the trial court - or, at minimum, the weight of the evidence of such testing may be seriously reduced. Thus, the field-sobriety testing procedures become a much greater focus of importance in a situation wherein the BAC test results don't come into evidence at trial (either because the individual refused such testing, or because a pretrial motion, filed by the individual's DUI defense attorney, resulted in the exclusion of such BAC testing result at trial).
Commonly Asked Questions
Have questions? We are here to help. Still have questions or can't find the answer you need? Give us a call at 913-648-3360 today!
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Because it is illegal, under Kansas law, to plea bargain a DUI charge, the plea options, in a Kansas DUI matter, are usually limited to the following:
- Take the matter to Trial
- Consider diversion (if the person is eligible for diversion)
- Consider a plea of guilty, or no contest, to the DUI charge (if no better option is available) with negotiated plea minimums and, possible, dismissal of non-DUI charges that may be accompanying the DUI charge
A 4th alternative may be having the DUI charge dismissed IF the defense can show the prosecution that there is insufficient evidence to support a conviction to the charge - however, only an experienced attorney can understand the complexities of a DUI case, and conduct the relevant discovery (reports, lab results, video/audio recordings, and witness statements) needed to show the prosecution the true weaknesses to their prosecution case. I believe that every client deserves to have the best result possible under the circumstances of their case. I educate my clients on the relevant law regarding their factual circumstances so that my client can make the best decision possible regarding the outcome of their case.
- To receive clear cut answers to your questions on DUI charges, contact an Overland Park DUI lawyer from my firm.
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My name is Steve Neighbors, and I've successfully practiced law for 30 years. I have purposefully narrowed the scope of my practice to concentrate on DUI defense and in my experience, it is only through aggressive, and thorough, defense work, in opposition to the prosecution of DUI charges, that my client will obtain the best outcome possible. Your freedoms and rights are at stake; and, with a knowledgeable attorney working for you, there are many times when your charges can either be reduced, or dismissed (for insufficient evidence to convict) - which could result in the penalties you face being diminished.
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That depends upon the exact DUI offense you have been charged with, the severity of the crime and your prior DUI history. Commonly, DUI offenses are penalized by fines, community service, driver's license suspension, a jail sentence and possible impoundment of your vehicle. In addition, you will have to attend an alcohol awareness program. In some cases, an ignition interlock device will be installed in your car.
For more serious charges such as multiple DUI, felony DUI or vehicular manslaughter the penalties increase substantially.
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