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.
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).
The testing procedures required by KDHE in the use of evidentiary breath-alcohol testing in Kansas, may become extremely important in a challege to the evidentiary foundation that the criminal prosecution must show in order for the court to allow the introduction of the BAC testing results into evidence at a criminal DUI trial. Thus, it is important for the DUI defense attorney to be familiar with the KDHE requirements for such BAC testing. My office, regularly, purchases the KDHE test procedure training manuals for review. Further, when requested to do so by a client in representation for a criminal DUI matter, I will obtain the information from the police records custodian of the Intoxilyzer 8000 as it may relate to adherance to KDHE testing and reporting procedures, and as it may relate to machine maintenance and service reporting.
A preliminary breath test (PBT) is a portable breath testing device that is used in the field, by a law enforcement officer, for the purpose of assisting the officer in making a determination as to whether the person being tested should be arrested for a DUI offense. The PBT test result, again, cannot be introduced in court for evidence of the crime of DUI. Further, the only purpose for a test result to be introduced is during a pre-trial motion to challenge probable cause for the DUI arrest (per K.S.A. 8-1012). Under current law, there is no KDR action to suspend a driver's license on the basis of refusing a PBT.
The testing on an Intoxilyzer 8000 device, however, can have evidential value in a criminal DUI case. As such, the focus of much defense work, by a qualified, experienced, DUI attorney, goes to the steps that are necessary for any such test results to be introduced into evidence at a criminal DUI trial. Aside from KDHE Protocal (a short memorandum issued by KDHE to the various law enforcement BAC testing locations for instruction of the use of the Intoxilyzer 8000), the KDHE breath-alcohol program procedures and machine manufacturer instructions must be followed; and only devices approved by KDHE, and officers certified by KDHE, can be used in evidential breath-alcohol testing in Kansas.
Aside from criminal DUI situations, the Kansas Department of Revenue (KDR) will assert driver's license suspension issues against any driver of an automobile (or anyone thought to be attempting to operate a vehicle in cases of BAC test refusal). In such cases, the reliability of breath tests is defined, under Kansas law, as being an issue that can be questioned at an administrative license suspension action. While reliability can be an issue in a criminal DUI case, most defense issues are concerned only with the exclusion of the test result from evidence at trial.
The consequences for a being convicted of a criminal DUI vary in severity depending, mainly, upon whether the conviction is a 1st offense, 2nd offense, 3rd offense, or 4th offense or higher. The length of time since the prior conviction(s) CAN have an effect upon the severity, or level, of the DUI offense. Mandatory jail terms are a part of all levels of sentencing on a Kansas criminal DUI conviction. Within limits, such jail terms have some flexibility in how such time may be served.
However, under Kansas law, it is unlawful to plea bargain a criminal DUI offense to a lesser charge. Persons convicted of a criminal DUI will, also, suffer, license suspension, by KDR which, under current law, will involve ignition interlock for persons over the age of 21 (and MAY involve interlocke on persons under the age of 21). Other consequences involve having an alcohol/drug evaluation (ADSAP evaluation) and following alcohol/drug treatment recommendations. Probation is almost always an issue, and probations usually are monitored by a court-approved agency with minimum of monthly reporting and randum UA, breath and blood testing for alcohol usage or illegal drug usage.
There are many places where an attorney who works each day on DUI cases can aggressively find and utilize weak points in the prosecution's case. After 30 years of law practice in our state, I know how upsetting it can be to be charged with a DUI crime.
When necessary, I will take your matter to trial and assert a very aggressive, and tactical, defense. I have taken hundreds of DUI cases to trial, and I have won a majority of all such trial cases. While trial may not always be right for your circumstance, the threat of trial can be a useful tool in plea negotiations with the prosecution. Without a significant trial history, it would be difficult for an attorney to effectively negotiate a DUI case with the prosecution.