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8-1567. Driving under the influence; penalties. (a) Driving under the influence is operating or attempting to operate any vehicle within this state while:

(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in K.S.A. 8-1013(f)(1), and amendments thereto, is 0.08 or more;

(2) the alcohol concentration in the person's blood or breath, as measured within three hours of the time of operating or attempting to operate a vehicle, is 0.08 or more;

(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;

(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or

(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.

(b) (1) Driving under the influence is:

(A) On a first conviction, a class B, nonperson misdemeanor. The person convicted shall be sentenced to not less than 48 consecutive hours nor more than six months' imprisonment, or in the court's discretion 100 hours of public service, and fined not less than $750 nor more than $1,000;

(B) on a second conviction, a class A, nonperson misdemeanor. The person convicted shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,250 nor more than $1,750. The following conditions shall apply to such sentence:

(i) As a condition of any probation granted under this subsection, the person shall serve at least 120 hours of confinement. The hours of confinement shall include at least 48 hours of imprisonment and otherwise may be served by a combination of: Imprisonment; a work release program, if such work release program requires such person to return to the confinement at the end of each day in the work release program; or a house arrest program pursuant to K.S.A. 2022 Supp. 21-6609, and amendments thereto;

(ii) (a) if the person is placed into a work release program or placed under a house arrest program for any portion of the minimum of 120 hours of confinement mandated by this subsection, the person shall receive hour-for-hour credit for time served in such program until the minimum sentence is met. If the person is placed into a work release program or placed under a house arrest program for more than the minimum of 120 hours of confinement mandated by this subsection, the person shall receive hour-for-hour credit for time served in such program until the minimum of 120 hours of confinement is completed, and thereafter, the person shall receive day-for-day credit for time served in such program unless otherwise ordered by the court; and

(b) when in a work release program, the person shall only be given credit for the time served in confinement at the end of and continuing to the beginning of the person's work day. When under a house arrest program, the person shall be monitored by an electronic monitoring device that verifies the person's location and shall only be given credit for the time served within the boundaries of the person's residence;

(C) on a third conviction, a class A, nonperson misdemeanor, except as provided in subsection (b)(1)(D). The person convicted shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,750 nor more than $2,500. The following conditions shall apply to such sentence:

(i) As a condition of any probation granted under this subsection, the person shall serve at least 30 days of confinement. After at least 48 consecutive hours of imprisonment, the remainder of the period of confinement may be served by a combination of: Imprisonment; a work release program, if such work release program requires such person to return to the confinement at the end of each day in the work release program; or a house arrest program pursuant to K.S.A. 2022 Supp. 21-6609, and amendments thereto; and

(ii) (a) if the person is placed into a work release program or placed under a house arrest program for any portion of the minimum of 30 days of confinement mandated by this subsection, the person shall receive hour-for-hour credit for time served in such program for the first 240 hours of confinement, and thereafter, the person shall receive day-for-day credit for time served in such program unless otherwise ordered by the court; and

(b) when in a work release program, the person shall only be given credit for the time served in confinement at the end of and continuing to the beginning of the person's work day. When under a house arrest program, the person shall be monitored by an electronic monitoring device that verifies the person's location and shall only be given credit for the time served within the boundaries of the person's residence;

(D) on a third conviction, a severity level 6, nonperson felony if the person has a prior conviction which occurred within the preceding 10 years, not including any period of incarceration. The following conditions shall apply to such sentence:

(i) As a condition of any probation granted under this subsection, the person shall serve at least 30 days of confinement. After at least 48 consecutive hours of imprisonment, the remainder of the period of confinement may be served by a combination of: Imprisonment; a work release program, if such work release program requires such person to return to the confinement at the end of each day in the work release program; or a house arrest program pursuant to K.S.A. 2022 Supp. 21-6609, and amendments thereto; and

(ii) (a) if the person is placed into a work release program or placed under a house arrest program for any portion of the minimum of 30 days of confinement mandated by this subsection, the person shall receive hour-for-hour credit for time served in such program for the first 240 hours of confinement, and thereafter, the person shall receive day-for-day credit for time served in such program unless otherwise ordered by the court; and

(b) when in a work release program, the person shall only be given credit for the time served in confinement at the end of and continuing to the beginning of the person's work day. When under a house arrest program, the person shall be monitored by an electronic monitoring device that verifies the person's location and shall only be given credit for the time served within the boundaries of the person's residence; and

(E) on a fourth or subsequent conviction, a severity level 6, nonperson felony. The following conditions shall apply to such sentence:

(i) As a condition of any probation granted under this subsection, the person shall serve at least 30 days of confinement. After at least 48 consecutive hours of imprisonment, the remainder of the period of confinement may be served by a combination of: Imprisonment; a work release program, if such work release program requires such person to return to the confinement at the end of each day in the work release program; or a house arrest program pursuant to K.S.A. 2022 Supp. 21-6609, and amendments thereto; and

(ii) (a) if the person is placed into a work release program or placed under a house arrest program for any portion of the minimum of 30 days of confinement mandated by this subsection, the person shall receive hour-for-hour credit for time served in such program for the first 240 hours of confinement, and thereafter, the person shall receive day-for-day credit for time served in such program unless otherwise ordered by the court; and

(b) when in a work release program, the person shall only be given credit for the time served in confinement at the end of and continuing to the beginning of the person's work day. When under a house arrest program, the person shall be monitored by an electronic monitoring device that verifies the person's location and shall only be given credit for the time served within the boundaries of the person's residence.

(2) The court may order that the term of imprisonment imposed pursuant to subsection (b)(1)(D) or (b)(1)(E) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 2022 Supp. 21-6804, and amendments thereto. The secretary of corrections may refuse to admit the person to the designated facility and place the person in a different state facility, or admit the person and subsequently transfer the person to a different state facility, if the secretary determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person has failed to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review.

(3) In addition, for any conviction pursuant to subsection (b)(1)(C), at the time of the filing of the judgment form or journal entry as required by K.S.A. 22-3426 or K.S.A. 2022 Supp. 21-6711, and amendments thereto, the court shall cause a certified copy to be sent to the officer having the offender in charge. The court shall determine whether the offender, upon release from imprisonment, shall be supervised by community correctional services or court services based upon the risk and needs of the offender. The risk and needs of the offender shall be determined by use of a risk assessment tool specified by the Kansas sentencing commission. The law enforcement agency maintaining custody and control of a defendant for imprisonment shall cause a certified copy of the judgment form or journal entry to be sent to the supervision office designated by the court and upon expiration of the term of imprisonment shall deliver the defendant to a location designated by the supervision office designated by the court. After the term of imprisonment imposed by the court, the person shall be placed on supervision to community correctional services or court services, as determined by the court, for a mandatory one-year period of supervision, which such period of supervision shall not be reduced. During such supervision, the person shall be required to participate in a multidisciplinary model of services for substance use disorders facilitated by a Kansas department for aging and disability services designated care coordination agency to include assessment and, if appropriate, referral to a community based substance use disorder treatment including recovery management and mental health counseling as needed. The multidisciplinary team shall include the designated care coordination agency, the supervision officer, the Kansas department for aging and disability services designated treatment provider and the offender. An offender for whom a warrant has been issued by the court alleging a violation of this supervision shall be considered a fugitive from justice if it is found that the warrant cannot be served. If it is found the offender has violated the provisions of this supervision, the court shall determine whether the time from the issuing of the warrant to the date of the court's determination of an alleged violation, or any part of it, shall be counted as time served on supervision. Any violation of the conditions of such supervision may subject such person to revocation of supervision and imprisonment in jail for the remainder of the period of imprisonment, the remainder of the supervision period, or any combination or portion thereof. The term of supervision may be extended at the court's discretion beyond one year, and any violation of the conditions of such extended term of supervision may subject such person to the revocation of supervision and imprisonment in jail of up to the remainder of the original sentence, not the term of the extended supervision.

(4) In addition, prior to sentencing for any conviction pursuant to subsection (b)(1)(A) or (b)(1)(B), the court shall order the person to participate in an alcohol and drug evaluation conducted by a provider in accordance with K.S.A. 8-1008, and amendments thereto. The person shall be required to follow any recommendation made by the provider after such evaluation, unless otherwise ordered by the court.

(c) Any person 18 years of age or older convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had one or more children under the age of 18 years in the vehicle at the time of the offense shall have such person's punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this section or an ordinance which prohibits the acts that this section prohibits. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.

(d) If a person is charged with a violation of subsection (a)(4) or (a)(5), the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.

(e) The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.

(f) (1) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.

(2) The court may, in its discretion, waive any portion of a fine imposed pursuant to this section, except the $250 required to be remitted to the state treasurer pursuant to subsection (q)(2), upon a showing that the person successfully completed court-ordered education or treatment.

(g) Prior to filing a complaint alleging a violation of this section, a prosecutor shall request and shall receive from the:

(1) Division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state; and

(2) Kansas bureau of investigation central repository all criminal history record information concerning such person.

(h) The court shall electronically report every conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings on a complaint alleging a violation of this section to the division including any finding regarding the alcohol concentration in the offender's blood or breath. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.

(i) For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:

(1) Convictions for a violation of this section, or a violation of an ordinance of any city or resolution of any county that prohibits the acts that this section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, shall be taken into account, but only convictions or diversions occurring on or after July 1, 2001. Nothing in this provision shall be construed as preventing any court from considering any convictions or diversions occurring during the person's lifetime in determining the sentence to be imposed within the limits provided for a first, second, third, fourth or subsequent offense;

(2) any convictions for a violation of the following sections occurring during a person's lifetime shall be taken into account:

(A) Driving a commercial motor vehicle under the influence, K.S.A. 8-2,144, and amendments thereto;

(B) operating a vessel under the influence of alcohol or drugs, K.S.A. 32-1131, and amendments thereto;

(C) involuntary manslaughter while driving under the influence of alcohol or drugs, K.S.A. 21-3442, prior to its repeal, or K.S.A. 2022 Supp. 21-5405(a)(3) or (a)(5), and amendments thereto;

(D) aggravated battery as described in K.S.A. 2022 Supp. 21-5413(b)(3) or (b)(4), and amendments thereto; and

(E) aggravated vehicular homicide, K.S.A. 21-3405a, prior to its repeal, or vehicular battery, K.S.A. 21-3405b, prior to its repeal, if the crime was committed while committing a violation of K.S.A. 8-1567, and amendments thereto;

(3) "conviction" includes:

(A) Entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging an offense described in subsection (i)(2); and

(B) conviction of a violation of an ordinance of a city in this state, a resolution of a county in this state or any law of another jurisdiction that would constitute an offense that is comparable to the offense described in subsection (i)(1) or (i)(2);

(4) multiple convictions of any crime described in subsection (i)(1) or (i)(2) arising from the same arrest shall only be counted as one conviction;

(5) it is irrelevant whether an offense occurred before or after conviction for a previous offense; and

(6) a person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, and amendments thereto, or an ordinance which prohibits the acts of this section, and amendments thereto, only once during the person's lifetime.

(j) For the purposes of determining whether an offense is comparable, the following shall be considered:

(1) The name of the out-of-jurisdiction offense;

(2) the elements of the out-of-jurisdiction offense; and

(3) whether the out-of-jurisdiction offense prohibits similar conduct to the conduct prohibited by the closest approximate Kansas offense.

(k) Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person's driving privileges as provided by K.S.A. 8-1014, and amendments thereto.

(l) (1) Nothing contained in this section shall be construed as preventing any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited or made unlawful by this act as unlawful or prohibited in such city or county and prescribing penalties for violation thereof.

(2) The minimum penalty prescribed by any such ordinance or resolution shall not be less than the minimum penalty prescribed by this section for the same violation, and the maximum penalty in any such ordinance or resolution shall not exceed the maximum penalty prescribed for the same violation.

(3) On and after July 1, 2007, and retroactive for ordinance violations committed on or after July 1, 2006, an ordinance may grant to a municipal court jurisdiction over a violation of such ordinance which is concurrent with the jurisdiction of the district court over a violation of this section, notwithstanding that the elements of such ordinance violation are the same as the elements of a violation of this section that would constitute, and be punished as, a felony.

(4) Any such ordinance or resolution shall authorize the court to order that the convicted person pay restitution to any victim who suffered loss due to the violation for which the person was convicted.

(m) (1) Upon the filing of a complaint, citation or notice to appear alleging a person has violated a city ordinance prohibiting the acts prohibited by this section, and prior to conviction thereof, a city attorney shall request and shall receive from the:

(A) Division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state; and

(B) Kansas bureau of investigation central repository all criminal history record information concerning such person.

(2) If the elements of such ordinance violation are the same as the elements of a violation of this section that would constitute, and be punished as, a felony, the city attorney shall refer the violation to the appropriate county or district attorney for prosecution.

(n) No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining. This subsection shall not be construed to prohibit an amendment or dismissal of any charge where the admissible evidence is not sufficient to support a conviction beyond a reasonable doubt on such charge.

(o) The alternatives set out in subsection (a) may be pleaded in the alternative, and the state, city or county may, but shall not be required to, elect one or more of such alternatives prior to submission of the case to the fact finder.

(p) As used in this section:

(1) "Alcohol concentration" means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath;

(2) "imprisonment" includes any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the board of county commissioners or the governing body of a city; and

(3) "drug" includes toxic vapors as such term is defined in K.S.A. 2022 Supp. 21-5712, and amendments thereto.

(q) (1) The amount of the increase in fines as specified in this section shall be remitted by the clerk of the district court to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of remittance of the increase provided in this act, the state treasurer shall deposit the entire amount in the state treasury and the state treasurer shall credit 50% to the community alcoholism and intoxication programs fund and 50% to the department of corrections alcohol and drug abuse treatment fund, which is hereby created in the state treasury.

(2) On and after July 1, 2011, the amount of $250 from each fine imposed pursuant to this section shall be remitted by the clerk of the district court to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall credit the entire amount to the community corrections supervision fund established by K.S.A. 75-52,113, and amendments thereto.

History: L. 1974, ch. 33, § 8-1567; L. 1976, ch. 50, § 1; L. 1982, ch. 144, § 5; L. 1983, ch. 37, § 2; L. 1984, ch. 37, § 4; L. 1984, ch. 39, § 9; L. 1985, ch. 48, § 9; L. 1985, ch. 50, § 5; L. 1988, ch. 48, § 6; L. 1988, ch. 47, § 17; L. 1989, ch. 92, § 16; L. 1990, ch. 44, § 6; L. 1990, ch. 47, § 3; L. 1991, ch. 36, § 20; L. 1992, ch. 298, § 1; L. 1993, ch. 259, § 8; L. 1993, ch. 291, § 270; L. 1994, ch. 291, § 2; L. 2001, ch. 200, § 14; L. 2002, ch. 50, § 1; L. 2002, ch. 166, § 2; L. 2003, ch. 100, § 1; L. 2007, ch. 181, § 9; L. 2008, ch. 170, § 4; L. 2009, ch. 107, § 5; L. 2009, ch. 143, § 3; L. 2010, ch. 153, § 3; L. 2011, ch. 105, § 19; L. 2012, ch. 172, § 20; L. 2013, ch. 122, § 6; L. 2014, ch. 115, § 3; L. 2018, ch. 7, § 7; L. 2018, ch. 106, § 13; L. 2022, ch. 80, § 14; July 1.

Source or prior law:

8-530.

Cross References to Related Sections:

Section applicable upon highways and elsewhere throughout the state, see 8-1501.

Restriction of license by court in lieu of revocation by division of vehicles, see 8-254 (b).

Implied consent law, see 8-1001 et seq.

Presentence evaluation requirements, 8-1008.

Terms of diversion, see 12-4412 et seq. and 22-2906 et seq.

Victim impact statement and restitution requirements, see 8-1019.

Limitation on professional license consequences, see 74-149.

Law Review and Bar Journal References:

Prior law (K.S.A. 8-530); discussing habitual criminal statutes, Jerry E. Norton, 6 W.L.J. 24, 25 (1966).

Prior law (K.S.A. 8-530); traffic cases and license problems, William M. Ferguson, 39 J.B.A.K. 351, 354, 399, 400 (1970).

Prior law (K.S.A. 8-530); admissibility of evidence in DWI cases, 13 W.L.J. 113 (1974).

"Wyatt Earp and the Winelist: Is a Restaurant an 'Open Saloon'?" Barkley Clark, 47 J.B.A.K. 63, 77 (1978).

"S.B. 699—A Comment on Kansas' New 'Drunk Driving' Law," Joseph Brian Cox and Donald G. Strole, 51 J.K.B.A. 230 (1982).

"The New Kansas Drunk Driving Law: A Closer Look," Matthew D. Keenan, 31 K.L.R. 409 (1983).

"The New Kansas DUI Law: Constitutional Issues and Practical Problems," Gerard Little, Jr., 22 W.L.J. 340 (1983).

"Criminal Law: Reckless Driving Is Not a Lesser Included Offense of Driving While Under the Influence of Alcohol," Katy Streepy Nitcher, 23 W.L.J. 421, 433, 434 (1984).

"Survey of Kansas Law: Criminal Law," Robert A. Wason, 32 K.L.R. 395 (1984).

"Third Party Liability for Drunken Driving," Betsey J. Morgan, 26 W.L.J. 267, 295 (1987).

"The Decisive Blow to The Double Jeopardy Defense In Kansas Drunk Driving Prosecutions: State v. Mertz," Todd A. LaSala, 44 K.L.R. 1009 (1996).

"Automobile Collisions: Defendants Are Liable for Punitive Damages When They Are Driving Under the Influence of Alcohol at the Time of the Collision," Gary D. White, Jr., J.K.T.L.A. Vol. XX, No. 2, 12 (1996).

"Sentencing Considerations: Representing Other-State Residents in Kansas and Representing Kansas Residents in Missouri," Phillip Burdick, J.K.T.L.A. Vol. XX, No. 2, 16 (1996).

Survey of Recent Cases, 46 K.L.R. 918 (1998).

Criminal Procedure Edition, 47 K.L.R. 937 (1999).

"Home Rule in a Nutshell," Sandra Craig McKenzie, 48 K.L.R. 1005 (2000).

"Giving Credit when Credit is due, The Kansas law on jail time credit," Franklin R. Pierce, 69 J.K.B.A. No. 9, 22 (2000).

"Criminal Procedure Survey of Recent Cases," 50 K.L.R. 901 (2002).

"Criminal Procedure Survey of Recent Cases," Matt Corbin, Editor, 51 K.L.R. 659, 710, 743 (2003).

"Criminal Procedure Survey of Recent Cases, Kansas Issue," 52 K.L.R. 771 (2004).

"Home Rule, A Primer," Michael R. Heim, 74 J.K.B.A. No. 1, 26 (2005).

"Criminal Procedure Survey of Recent Cases," 54 K.L.R. 895 (2006).

"Packing Heat: The Personal and Family Protection Act," Mary D. Feighny, 76 J.K.B.A. No. 4, 21 (2007).

Criminal Procedure Survey, 55 K.L.R. 797 (2007).

"Don't Hold Your Breath: Kansas's Criminal Refusal Law Is on a Collision Course with the U.S. Constitution," Taryn Alexandra Locke, 52 W.L.J. 289 (2013).

Attorney General's Opinions:

City ordinances prohibiting transportation of alcoholic liquor open containers. 82-19.

Driving under influence of alcohol; effect of state law on city ordinances. 82-152.

Driving under influence of alcohol; imposition by municipal courts for subsequent violations. 82-155.

Driving under influence of alcohol; fines, diversion programs, community service time. 82-157.

Effect on DUI prosecutions instituted before effective date of amendments. 82-169.

Court discretion in sentencing first time DUI offenders. 82-175.

Performance of public or community service by convicted DUI violators. 82-183.

Use of prior convictions in determining sentence for DUI offense. 82-182, 82-185.

Performance of community service for DUI conviction not covered by workmen's compensation. 82-213.

Assessment for alcohol and drug safety action programs under DUI convictions; prohibition of assessment of costs. 82-233.

Suspension or revocation of cereal malt beverage retailer's license; employment of person convicted of DUI. 82-269.

DUI conviction; alcohol and drug safety action program; diversion. 83-8.

Certification of community based alcohol and drug safety action programs; licensure of treatment facilities. 83-102.

Definition of imprisonment. 83-123.

Traffic violation arrests; citations, procedures and penalties; appearance bond. 83-137.

Municipal courts; diversion agreements; DUI defendants. 83-181.

Serious traffic offenses; driving under influence of alcohol or drugs; work release for multiple offenders. 84-9.

Procedure after arrest; diversion; imposition of diversion costs. 84-15.

Qualifications for CMB retailer's license; conviction of DUI includes participation in diversion program. 84-21.

DUI; prohibition on parole until minimum sentence served. 84-23.

Liability for costs in criminal cases. 84-25.

Prosecution for state statute violation occurring within a city. 84-32.

DUI; elements of offense. 84-44.

Diversion agreements involving restriction of driver's license. 85-1.

Drivers' licenses; driving while license canceled, suspended or revoked; nonresident motorist. 85-9.

Intoxicating liquors and beverages; licensing and related provisions; classes of persons to whom licenses not issued; conviction of violation of intoxicating liquor laws. 85-44.

Alcohol and drug safety action fund; under control of municipal court. 85-68.

Municipal court diversion; factors to be considered before diversion offer. 85-127.

Driving under influence; "per se" violation. 85-133.

Alcohol and drug safety action fund under control of municipal court. 86-14.

Conviction defined. 86-59.

When passing on the right permitted. 86-144.

Search warrants; use in municipal courts. 86-148.

Restrictions on plea bargaining in prosecutions for driving under the influence of alcohol or drugs. 86-172.

Habitual violators; suspension date of drivers' licenses. 87-29.

Purchase of portable breath testers for DUI enforcement is proper use of funds raised under 65-4060. 87-37.

Breath test machine results log is criminal investigation record; not required to be disclosed to public. 87-63.

Motor vehicle drivers' license act; application of mandatory 90-day jail term. 88-23.

DUI diversion with prior expunged offense. 88-98.

Provisions of diversion agreement; disposition of diversion fees. 89-105.

Prosecution of juvenile traffic offenders. 89-147.

Interlocal agreements; prosecution of city DUI violation ordinance by county attorney. 91-26.

DUI conviction; penalties; public service. 91-27.

Powers of counties under community corrections act; DUI offenses; work release programs. 91-57.

Driving under the influence of alcohol or drugs; sentencing. 92-2.

Alcohol and drug safety action program; fees, disposition. 93-18.

DUI; mandatory imprisonment; custody of law enforcement officials. 93-20.

Municipal court's jurisdiction of third and subsequent DUI offenses. 93-81.

Driving motor vehicle with canceled, suspended or revoked license; penalty; "imprisonment" defined. 93-94.

Driving under the influence; imprisonment; house arrest program. 93-109.

Driving under the influence; ignition interlock device. 93-139.

Provisions of diversion agreements; open public records. 94-7.

Crime victims compensation board; definitions; criminally injurious conduct; use of motor vehicle. 94-41.

Driving under the influence; place of incarceration for third or subsequent offense; penalties. 94-43.

Municipal court diversion; ineligibility based on prior alcohol related conviction. 94-62.

DUI; penalties; sentencing guidelines; grid for nondrug crimes; presumptive disposition; term of imprisonment. 94-161.

DUI; alcohol and drug safety action program; presentence evaluation assessments. 95-17.

DUI; eligibility for good time credit on third or subsequent conviction. 95-41.

Failure to comply with traffic citation; amount of reinstatement fee when charges are in alternative. 97-48.

Driving under influence of alcohol or drugs by persons under 21; proceedings for determining violation; filing abstracts of court records; penalties. 97-69.

Discretion of court to suspend mandatory minimum fine for person under 21 possessing alcoholic liquor or cereal malt beverages. 1999-12.

Municipal diversion is a "conviction" for purposes of enhanced punishment regardless whether diversion was expunged. 2001-48.

Diversion for driving under the influence of alcohol is precluded for commercial drivers. 2003-32.

Municipal courts have jurisdiction to hear ordinance violations that could be prosecuted as a felony in district court. 2007-26.

Person who has been charged with operating a vehicle under the influence and thereafter completes diversion is not disqualified from being a candidate for or holding the office of sheriff. 2012-8.

Plea bargaining DUI charge that avoids penalties of section is prohibited. 2022-2.

CASE ANNOTATIONS

1. Crimes in which prior conviction is a necessary element distinguished from crimes considered in establishing penalties. State v. Loudermilk, 221 K. 157, 160, 557 P.2d 1229.

2. Conviction hereunder affirmed; instruction on lesser offense not required. State v. Hall, 1 K.A.2d 730, 731, 573 P.2d 635.

3. Conviction hereunder reversed on appeal; admission of doctor's testimony error. State v. George, 223 K. 507, 575 P.2d 511.

4. Review of alleged errors on appeal from conviction hereunder; judgment affirmed. State v. Miesbauer, 3 K.A.2d 53, 54, 588 P.2d 953.

5. The words "elsewhere throughout the state" in K.S.A. 8-1501 considered a part hereof and applied to operation of motor vehicles upon private as well as public property. State v. Budden, 226 K. 150, 152, 154, 595 P.2d 1138.

6. Mentioned; conviction for involuntary manslaughter affirmed. State v. Parson, 226 K. 491, 492, 601 P.2d 680.

7. Alcohol breath test sample lawfully obtained is admissible although driver incapable of exercising statutory right to refuse test. State v. Garner, 3 K.A.2d 697, 600 P.2d 1166.

8. Implied consent given pursuant to K.S.A. 8-1001 applicable to unconscious or incapacitated driver; results of breath test admissible as evidence. State v. Garner, 227 K. 566, 608 P.2d 1321.

9. Conviction hereunder affirmed; no abuse of discretion in denying continuance when defendant's conduct is dilatory. State v. Miller, 4 K.A.2d 68, 602 P.2d 553.

10. Conviction under this section upheld; no error in allowing amendment of complaint at trial or allowing memoranda to refresh recollection of witness. State v. Wright, 4 K.A.2d 196, 603 P.2d 1034.

11. Defendant charged under this section; order granting motion to suppress results of blood test reversed. State v. Mezins, 4 K.A.2d 292, 293, 605 P.2d 159.

12. Report of alcohol level in blood and testimony of three witnesses sufficient to show violation of statute. U.S. v. Hayes, 640 F.2d 280, 281, 282.

13. Provisions of K.S.A. 8-1001 become operative only after a person is arrested or otherwise taken into custody. State v. Williams, 4 K.A.2d 651, 652, 653, 610 P.2d 111.

14. Where defendant's license merely restricted, conviction of driving on revoked license reversed and defendant discharged. State v. Streit, 5 K.A.2d 168, 169, 613 P.2d 396.

15. State must prove that accused drove the motor vehicle in an intoxicated condition. State v. Fish, 228 K. 204, 205, 207, 209, 210, 612 P.2d 180.

16. Defendant's conviction in Missouri for driving while under the influence of intoxicating liquor was not a bar to a Kansas prosecution for same offense; judgment reversed. State v. Russell, 229 K. 124, 125, 622 P.2d 658.

17. Circumstantial evidence of intoxication erroneously excluded. State v. Ward, 233 K. 144, 145, 660 P.2d 957 (1983).

18. Offense of reckless driving is not lesser included offense of DUI; different elements of proof required for each offense. State v. Mourning, 233 K. 678, 681, 682, 664 P.2d 857 (1983).

19. Outright repeal and substantial reenactment of city ordinance on DUI; no presumption of remission of crimes under first ordinance which are not reduced to judgment. City of Kansas City v. Griffin, 233 K. 685, 686, 687, 689, 664 P.2d 865 (1983).

20. Prohibition against plea bargaining on charge of DUI does not violate separation of powers doctrine and is constitutional. State v. Compton, 233 K. 690, 692, 699, 701, 664 P.2d 1370 (1983).

21. Instruction, while acceptable, should separate definitional portion from elements of offense. State v. Reeves, 233 K. 702, 704, 705, 664 P.2d 862 (1983).

22. Mentioned in noting constitutionality of statute. State v. Reves, 233 K. 972, 980, 666 P.2d 1190 (1983).

23. Enhancement of sentence requires succeeding offenses be committed after conviction for preceding offense. State v. Osoba, 234 K. 443, 445, 672 P.2d 1098 (1983).

24. Cited in holding state has no right to appeal partial dismissal of complaint while remainder pending. State v. Bickford, 234 K. 507, 508, 672 P.2d 607 (1983).

25. "Self-contained habitual criminal act"; prior conviction cannot be used where right to counsel violated. State v. Oehm, 9 K.A.2d 399, 400, 402, 680 P.2d 309 (1984).

26. Prior DUI conviction not element of crime hereunder; merely bears on penalty imposed. State v. Helgeson, 235 K. 534, 536, 680 P.2d 910 (1984).

27. Diversion agreement in prior case considered conviction for sentence enhancement purposes. State v. Clevenger, 235 K. 864, 867, 683 P.2d 1272 (1984).

28. Two-hour lapse from driving time to blood test goes to weight, not admissibility, of evidence. State v. Armstrong, 236 K. 290, 689 P.2d 897 (1984).

29. No right to counsel when arrested for driving under influence before submitting to or refusing blood alcohol test. State v. Bristor, 236 K. 313, 314, 322, 691 P.2d 1 (1984).

30. Inadvertent failure to provide blood test results under K.S.A. 8-1002 no justification for suppression of results. State v. Wanttaja, 236 K. 323, 325, 691 P.2d 8 (1984).

31. Cited in holding accused may waive rights under K.S.A. 22-3402 by conduct, such as acquiescing in continuance. State v. Bean, 236 K. 389, 392, 691 P.2d 30 (1984).

32. Silent record no presumption jury waived; 48-hour rule (K.S.A. 22-3404) inapplicable where counsel appointed moments before trial. State v. Dickson, 9 K.A.2d 425, 426, 680 P.2d 313 (1984).

33. Statutory changes in K.S.A. 38-1602(b)(1) not retroactively applied to juvenile charged before change effective. In re Hockenbury, 9 K.A.2d 450, 453, 680 P.2d 561 (1984).

34. Statute not vague nor denial of equal protection or ex post facto in nature. State v. Campbell, 9 K.A.2d 474, 477, 681 P.2d 679 (1984).

35. Order of continuance must have statutory grounds and be rendered within 180-day statutory period. State v. George, 9 K.A.2d 479, 481, 681 P.2d 30 (1984).

36. Warrantless search of defendant's automobile passenger compartment and trunk incident to lawful arrest for DUI upheld. State v. Press, 9 K.A.2d 589, 592, 598, 685 P.2d 887 (1984).

37. Cited in holding habitual violator under K.S.A. 8-285 requires three separate convictions, each based on separate incident. State v. Underwood, 10 K.A.2d 116, 120, 123, 693 P.2d 1205 (1985).

38. When legislature intends a limitation on use of prior convictions for enhancement, such limitation is included in statute. State v. Evans, 10 K.A.2d 171, 172, 694 P.2d 912 (1985).

39. Inpatient treatment for alcoholism does not satisfy requirement for imprisonment found in subsection (d). State v. Meredith, 236 K. 866, 869, 696 P.2d 403 (1985).

40. Consideration of convictions within five years of present offense is consistent with existing case law. City of Chanute v. Wilson, 10 K.A.2d 498, 499, 704 P.2d 392 (1985).

41. Dismissal on double jeopardy grounds; identity of elements rule and compulsory joinder rule of K.S.A. 21-3108(2)(a) discussed. State v. Brueninger, 238 K. 429, 710 P.2d 1325 (1985).

42. Entering into diversion agreement in lieu of further criminal proceedings considered conviction for sentence enhancement. State v. Booze, 238 K. 551, 558, 712 P.2d 1253 (1986).

43. Conviction hereunder; audio/visual recording of proceedings, MADD and SADD buttons worn by spectators, polygraph test, intoxylizer tests, restitution sentence discussed. State v. McNaught, 238 K. 567, 713 P.2d 457 (1986).

44. Cited; unreasonable to charge defendant with 65 days remaining in 180-day period (K.S.A. 22-3402(2)) where request for jury necessitated continuance. State v. Dreher, 239 K. 259, 261, 717 P.2d 1053 (1986).

45. Only fact necessary to sustain charge is requisite blood alcohol percentage; no evidence of impaired or erratic driving required. State v. Zito, 11 K.A.2d 432, 434, 724 P.2d 149 (1986).

46. Statute imposes absolute liability with no showing of criminal intent required; offense may be proven by circumstantial evidence. City of Wichita v. Hull, 11 K.A.2d 441, 445, 447, 724 P.2d 699 (1986).

47. Cited; definition of "alcohol concentration" in K.S.A. 8-1005(b) held applicable to city ordinance. City of Ottawa v. Brown, 11 K.A.2d 581, 584, 730 P.2d 364 (1986).

48. Driving while under influence of alcohol is lesser included offense of aggravated vehicular homicide (K.S.A. 21-3405a). State v. Woodman, 12 K.A.2d 110, 111, 112, 113, 118, 119, 735 P.2d 1102 (1987).

49. DUI conviction cannot be enhanced where record of prior diversion agreement is silent on defendant's representation or waiver of counsel under Sixth Amendment. State v. Priest, 239 K. 681, 682, 685, 722 P.2d 576 (1986).

50. Conviction affirmed; admissibility of blood alcohol test (K.S.A. 8-1001), abuse in sentencing (K.S.A. 21-4601 et seq.), underlying crimes of aggravated vehicular homicide (K.S.A. 21-3405a) examined. State v. Louis, 240 K. 175, 176, 727 P.2d 483 (1986).

51. Trial court does not have discretion regarding mandatory minimum fine upon second DUI conviction. State v. Kitzman, 240 K. 191, 194, 727 P.2d 491 (1986).

52. Cited; refusal to submit to blood tests does not permit issuance of search warrants for blood samples (K.S.A. 8-1001(f), 8-1001(g)). State v. Adee, 241 K. 825, 833, 740 P.2d 611 (1987).

53. Paragraph (a)(1) creates new rule of law where being under influence not an issue; provision constitutional. State v. Larson, 12 K.A.2d 198, 201, 737 P.2d 880 (1987).

54. Cited; admissibility of blood alcohol test performed with consent but without notices contained in K.S.A. 8-1001(f)(1) examined. State v. Doeden, 12 K.A.2d 245, 738 P.2d 876 (1987).

55. Prosecution hereunder can be commenced only by filing complaint or information. State v. Fraker, 12 K.A.2d 259, 260, 739 P.2d 940 (1987).

56. Cited; constitutionality of city DUI ordinance examined and upheld. City of Overland Park, 12 K.A.2d 375, 376, 744 P.2d 523 (1987).

57. Conviction reversed; DUI as lesser included offense of involuntary manslaughter (K.S.A. 21-3404) examined. State v. Adams, 242 K. 20, 26, 744 P.2d 833 (1987).

58. Conviction vacated; prosecution for DUI must be commenced with filing of verified complaint. State v. Fraker, 242 K. 466, 467, 748 P.2d 868 (1988).

59. Cited; blood alcohol concentration as cause of accident, but not presumptive of intoxication in workers compensation cases (K.S.A. 44-501) examined. Poole v. Earp Meat Co., 242 K. 638, 643, 750 P.2d 1000 (1988).

60. Cited; viable fetus not a "human being" within meaning of aggravated vehicular homicide statute (K.S.A. 21-3405a) determined. State v. Trudell, 243 K. 29, 30, 755 P.2d 511 (1988).

61. Conviction reversed; "reasonable opportunity" to have additional alcohol concentration test (K.S.A. 8-1004) examined. State v. George, 12 K.A.2d 649, 650, 754 P.2d 460 (1988).

62. Cited; DUI as lesser included offense of aggravated vehicular homicide (K.S.A. 21-3405a), convictions of both as multiplicitous noted. State v. Hickey, 12 K.A.2d 781, 786, 787, 757 P.2d 735 (1988).

63. Cited; notice provisions of K.S.A. 8-1001 concerning right to independent test as mandatory rather than directory examined. Barnhart v. Kansas Dept. of Revenue, 243 K. 209, 210, 755 P.2d 1337 (1988).

64. Cited; presumption in favor of probation (K.S.A. 21-4606a) examined where first convictions are Class E felonies. State v. Knabe, 243 K. 538, 540, 757 P.2d 308 (1988).

65. Cited; Nonresident Violator Compact (K.S.A. 8-1219) as exception to suspension provisions in K.S.A. 8-256(a) and 8-1474 examined. State v. Hudon, 243 K. 725, 727, 763 P.2d 611 (1988).

66. Previous uncounseled misdemeanor convictions as basis for habitual violator status (K.S.A. 8-286) and not invalidating conviction under K.S.A. 8-287 examined. State v. Whitehurst, 13 K.A.2d 411, 414, 772 P.2d 1251 (1988).

67. Removal of district judge from office for violating cease and desist order following successful completion of diversion agreement noted. In re Yandell, 244 K. 709, 711, 772 P.2d 807 (1989).

68. History of K.S.A. 8-2117 (juvenile traffic offenders) examined; limitations on length and places of incarceration determined. State v. D.L.P., 13 K.A.2d 647, 651, 778 P.2d 851 (1989).

69. DUI prosecution under chapter 12 of K.S.A. for violation of municipal ordinance as not requiring verified complaint examined. City of Tonganoxie v. Jack, 13 K.A.2d 718, 779 P.2d 34 (1989).

70. Complaint sworn to before notary, bonded defendant not immediately appearing before judge, admissibility of breath test examined. State v. Lieurance, 14 K.A.2d 87, 88, 782 P.2d 1246 (1989).

71. Provisions of (f) exclude work release programs from definition of imprisonment. State v. Martin, 14 K.A.2d 138, 140, 783 P.2d 1316 (1990).

72. Proper remedy for violating right to counsel in K.S.A. 8-1001(f)(1)(E) as suppression of breath test determined; invoking right examined. State v. Kelly, 14 K.A.2d 182, 192, 786 P.2d 623 (1990).

73. Trial court's authority to impose jail time as condition of probation (K.S.A. 21-4610) examined. State v. Walbridge, 14 K.A.2d 483, 486, 794 P.2d 316 (1990); reversed 248 K. 65, 805 P.2d 15 (1991).

74. DUI charge filed 5 1 / 2 months after arrest as causing no prejudice to defendant determined. State v. Smith, 247 K. 455, 460, 799 P.2d 497 (1990).

75. Jail time credits contemplated in K.S.A. 21-4614 inapplicable to mandatory minimum times required herein. State v. Urbanek, 15 K.A.2d 73, 76, 803 P.2d 1030 (1991).

76. Cited in examination of habitual violator act (K.S.A. 8-284 et seq.); what constitutes "immediately preceding five years" (K.S.A. 8-285) determined. State v. Walden, 15 K.A.2d 139, 144, 803 P.2d 1054 (1991).

77. Sobriety testing as performance of physical skills did not constitute testimonial interrogation. Stange v. Worden, 756 F.Supp. 508, 509 (1991).

78. State's dismissal of action based on necessity and refiling same as not an avoidance of speedy trial limitations (K.S.A. 22-3402) examined. State v. Jamison, 248 K. 302, 303, 806 P.2d 972 (1991).

79. Failure to inform accused of notice provisions in K.S.A. 8-1001(f) held to require suppression of blood/alcohol test results. State v. Luft, 248 K. 911, 913, 811 P.2d 873 (1991).

80. Two-hour limitation in (a)(2) does not apply to administrative suspensions resulting from test failure under implied consent statute. Podrebarac v. Kansas Dept. of Revenue, 15 K.A.2d 383, 807 P.2d 1327 (1991).

81. Prearrest inquiry of driver during investigation of accident as noncustodial interrogation noted; no violation of Miranda rules. State v. Almond, 15 K.A.2d 585, 587, 811 P.2d 529 (1991).

82. License suspension is collateral consequence of DUI guilty plea; court not required to inform defendant. City of Ottawa v. Lester, 16 K.A.2d 244, 248, 822 P.2d 72 (1991).

83. Introduction of evidence of defendant's refusal to perform field sobriety tests not a violation of 5th Amendment. State v. Rubik, 16 K.A.2d 585, 586, 827 P.2d 771 (1992).

84. Horizontal gaze nystagmus field sobriety test noted as scientific; foundation requirements for admissibility must be satisfied. State v. Witte, 251 K. 313, 314, 836 P.2d 1110 (1992).

85. Law enforcement officer's stop of vehicle for safety reasons alone examined. State v. Vistuba, 251 K. 821, 840 P.2d 511 (1992).

86. Where judge imposes fine beyond minimum mandatory amount, judge must comply with K.S.A. 21-4607. State v. Shuster, 17 K.A.2d 8, 10, 829 P.2d 925 (1992).

87. What constitutes completed breath test, inadequate sample due to physical inability caused by medical condition examined. Call v. Kansas Dept. of Revenue, 17 K.A.2d 79, 83, 831 P.2d 970 (1992).

88. Trial court's authority to sentence following first conviction examined; suspension of driver's license not permitted. State v. Gaschler, 17 K.A.2d 699, 700, 847 P.2d 1319 (1992).

89. In prosecution under subsection (a)(2), whether state complied with two- hour time limitation is foundational question. State v. Pendleton, 18 K.A.2d 179, 849 P.2d 143 (1993).

90. Officers were immune regarding state charges stated by driver charged with DUI under state tort claims act. Burgess v. West, 817 F.Supp. 1520, 1521, 1522, 1528 (1993).

91. Cited in holding diversion agreements may include provision for trial on stipulated facts in felony cases where agreement breached. In re Habeas Corpus Application of Tolle, 18 K.A.2d 491, 499, 856 P.2d 944 (1993).

92. City law enforcement officer's authority to exercise powers outside city limits (K.S.A. 22-2401a) examined; "request for assistance" construed. State v. Rowe, 18 K.A.2d 572, 856 P.2d 1340 (1993).

93. Whether house arrest constitutes imprisonment under K.S.A. 21-3405b(b)(2) examined. State v. Scherzer, 254 K. 926, 930, 932, 934, 937, 869 P.2d 729 (1994).

94. Whether municipal ordinances substantially conform with state statutes to be admissible in habitual violator action examined. State v. Graham, 19 K.A.2d 341, 342, 868 P.2d 1245 (1994).

95. Whether intoxicated passenger who refuses alcohol concentration test is subject to driver's license suspension examined. Furthmyer v. Kansas Dept. of Revenue, 19 K.A.2d 591, 598, 873 P.2d 1365 (1994).

96. Whether judge applied a standard stricter than minimum statutory standard regarding alcohol impairment examined. State v. Arehart, 19 K.A.2d 879, 880, 878 P.2d 227 (1994).

97. Whether defendant charged with second DUI in five years must request jury trial within seven days after trial notification examined. State v. Jones, 19 K.A.2d 982, 983, 879 P.2d 1141 (1994).

98. Whether blood test results requested by defendant's physician in vehicular homicide case are subject to physician-patient privilege examined. State v. Mendoza, 20 K.A.2d 541, 543, 889 P.2d 1147 (1995).

99. Noted in discussion of how far back prior termination of parental rights should be considered in applying subsequent unfitness presumption. In re J.L., 20 K.A.2d 665, 673, 891 P.2d 1125 (1995).

100. Whether uncounseled DUI diversion where defendant was not imprisoned may be used to enhance sentence in subsequent DUI conviction examined. Paletta v. City of Topeka, 20 K.A.2d 859, 862, 893 P.2d 280 (1995).

101. Whether subsection (f) controls over K.S.A. 21-4704(a) in determining penalties for third or later DUI conviction examined. State v. Webb, 20 K.A.2d 873, 875, 893 P.2d 255 (1995).

102. Whether felony DUI penalty provision is controlled by subsection (f) or K.S.A. 21-4701 et seq. examined. State v. Binkley, 20 K.A.2d 999, 1000, 894 P.2d 907 (1995).

103. Civil administrative sanction of driver's license suspension for DUI violation does not constitute punishment for double jeopardy purposes. State v. Mertz, 258 K. 745, 747, 751, 907 P.2d 847 (1995).

104. Defense counsel's failure to introduce medical evidence explaining intoxication not ineffective assistance. U.S. v. Salama, 893 F.Supp. 975, 976 (1995).

105. Requiring DUI defendant to disclose history of substance abuse to licensing agency not an abuse of discretion. U.S. v. White, 902 F.Supp. 1347, 1350 (1995).

106. Traffic DUI citation need not allege facts constituting a crime as required by complaint. State v. Boyle, 21 K.A.2d 944, 948, 913 P.2d 617 (1996).

107. A diversion agreement is considered a conviction when first entered into for habitual violator purposes. State v. Knoff, 22 K.A.2d 85, 911 P.2d 822 (1996).

108. Savings clause for technical irregularities (K.S.A. 8-1001 (f)(4)) applies only to commercial motor vehicle operators. State v. Bunker, 260 K. 564, 565, 920 P.2d 405 (1996).

109. A defendant convicted of one class of misdemeanor cannot be sentenced for higher severity level offense. State v. Masterson, 261 K. 158, 159, 929 P.2d 127 (1996).

110. Trial court denial of motion to suppress evidence of defendant's intoxication when stopped upheld. State v. Brown, 22 K.A.2d 560, 561, 920 P.2d 460 (1996).

111. House arrest is permissible following the minimum 48 consecutive hours of imprisonment. State v. Strand, 261 K. 895, 898, 899, 933 P.2d 713 (1997).

112. DUI probable cause to arrest depends on officer's factual basis for concluding defendant intoxicated at time of arrest. City of Dodge City v. Norton, 262 K. 199, 936 P.2d 1356 (1997).

113. Prosecutor's failure to satisfy breath test foundation requirements resulting in mistrial remanded on prosecutorial misconduct/double jeopardy issue. State v. Muck, 262 K. 459, 939 P.2d 896 (1997).

114. Municipalities may not prosecute felony driving under influence of alcohol charge. City of Junction City v. Cadoret, 263 K. 164, 165, 946 P.2d 1356 (1997).

115. Municipal convictions may be used under special criminal history provision of K.S.A. 21-4711(c). State v. Briggs, 24 K.A.2d 621, 623, 629, 950 P.2d 273 (1997).

116. Defendant convicted of DUI may be sentenced for class B misdemeanor where complaint fails to specify crime severity level. State v. Larson, 265 K. 160, 163, 958 P.2d 1154 (1998).

117. Trial court suppression of evidence and pretrial dismissal constituted reversible error. State v. Neuman, 266 K. 319, 320, 970 P.2d 988 (1998).

118. Admission of alcohol concentration test obtained four hours after defendant operated vehicle upheld. State v. Sliva, 25 K.A.2d 437, 438, 962 P.2d 1146 (1998).

119. Defendant's prior convictions for driving with a suspended license need not have predated current offense for HCA (K.S.A. 21-4504) enhancement purposes. State v. Bandy, 25 K.A.2d 696, 698, 971 P.2d 749 (1998).

120. Hospital's requirement that suspect sign an additional waiver to draw blood did not require suppression of evidence. State v. Beam, 25 K.A.2d 735, 971 P.2d 752 (1998).

121. Defendant is entitled to full credit for jail time served in lieu of bond against, mandatory minimum sentence. State v. Wolverton, 25 K.A.2d 737, 738, 969 P.2d 917 (1998).

122. Federal court had jurisdiction to try state felony DUI occurring on federal property as a misdemeanor. U.S. v. Talkington, 32 F.Supp.2d 1262, 1263 (1998).

123. Nature of misdemeanor charge of DUI filed in municipal court not changed into felony by subsequent acts of defendant; city retains jurisdiction. City of Dodge City v. Wetzel, 267 K. 402, 405, 409, 986 P.2d 353 (1999).

124. Provision that upon third conviction of DUI defendant is guilty of felony held constitutional; no specific intent required. State v. Martinez, 268 K. 21, 31, 988 P.2d 735 (1999).

125. Driving while under the influence of alcohol can be established through sobriety tests and other means but erratic driving is not a requirement. State v. Blair, 26 K.A.2d 7, 8, 974 P.2d 121 (1999).

126. Evidence of blood alcohol test sufficient to support driving under the influence conviction. State v. Hartman, 26 K.A.2d 928, 930, 991 P.2d 911 (2000).

127. Full and complete execution of Department of Revenue form DC-27 not required as foundation for admission of blood alcohol test results; other competent testimony, or combination thereof, will suffice. State v. Baker, 269 K. 383, 2 P.3d 786 (2000).

128. Administrative driver's license suspension under K.S.A. 8-1014 is not a suspension for violation of K.S.A. 8-1567. State v. Gee, 27 K.A.2d 739, 8 P.3d 45 (2000).

129. Sheriff's policy of requiring 12 hours' incarceration for DUI prior to posting bond is illegal but, absent specific prejudice, is not sufficient to justify dismissal of criminal charges. State v. Cuchy, 270 K. 763, 19 P.3d 152 (2001).

130. Charge of refusal to submit to PBT under K.S.A. 8-1012 was properly dismissed but court erred in dismissing DUI charge hereunder. State v. Gray, 270 K. 793, 18 P.3d 962 (2001).

131. Telephone tip in which caller identified herself by name and address was not anonymous and was sufficient for officer to stop driver for drunk driving. City of Pratt v. Stover, 272 K. 279, 32 P.3d 1143 (2001).

132. Preconviction jail time of 4 days, 3 hours and 12 minutes is not "at least five consecutive days imprisonment" and is not to be credited against mandatory imprisonment required by section. State v. Peterson, 29 K.A.2d 792, 31 P.3d 317 (2001).

133. Trial court has no jurisdiction to modify sentence once legally imposed under felony provisions of section. State v. Anthony, 274 K. 998, 58 P.3d 742 (2002).

134. Movement of vehicle not required in order to convict for driving under influence as defendant was attempting to operate vehicle. State v. Kendall, 274 K. 1003, 58 P.3d 660 (2002).

135. In considering prior convictions, five year look back period is from date of current offense not date of conviction. State v. Bell, 30 K.A.2d 395, 42 P.3d 749 (2002).

136. The district court has no statutory authority to modify felony DUI sentence after imposition. State v. Anthony, 274 K. 998, 999, 1000, 1001, 58 P.3d 742 (2002).

137. Frye test applied de novo by court; enzyme analysis is generally accepted as reliable in determining blood alcohol concentration. State v. Graham, 275 K. 176, 61 P.3d 662 (2003).

138. Under totality of circumstances, police officer's investigatory stop of vehicle based on anonymous tip upheld; three part test of Slater, 267 K. 694, applied. State v. Crawford, 275 K. 492, 67 P.3d 115 (2003).

139. For ex post facto violation in criminal prosecution, criminal act must have occurred before law was enacted. City of Norton v. Hurt, 275 K. 521, 66 P.3d 870 (2003).

140. City may adopt ordinance prohibiting operation of bicycle while drunk, but such conviction does not qualify as a DUI conviction under state statute. City of Wichita v. Hackett, 275 K. 848, 69 P.3d 621 (2003).

141. In order for prior convictions under K.S.A. 8-1567 to be converted to felonies in determining criminal history, defendant must be found to have been driving under influence of both alcohol and drugs. State v. Manbeck, 31 K.A.2d 618, 69 P.3d 636 (2003).

142. In order to prosecute as a felony there must be a preliminary hearing finding of probable cause to believe necessary prior convictions have occurred. State v. Seems, 31 K.A.2d 794, 74 P.3d 55 (2003).

143. Journal entry is adequate proof of prior conviction for purposes of criminal history. State v. Kralik, 32 K.A.2d 182, 80 P.3d 1175 (2003).

144. Prosecution required to present evidence of two prior DUI convictions at preliminary hearing to charge current DUI as nonperson felony. State v. Seems, 277 K. 303, 84 P.3d 606 (2004).

145. Court without jurisdiction to convict defendant to fourth DUI conviction as he was not charged for such offense. State v. Dyke, 33 K.A.2d 167, 100 P.3d 972 (2003).

146. Deficient breath sample not admissible as "other competent evidence" in prosecution for DUI under K.S.A. 8-1567 as such is not contained in paragraph (1) of subsection (f) of K.S.A. 8-1013. State v. Herrman, 33 K.A.2d 46, 99 P.3d 632 (2004).

147. Upon sentencing, any DUI conviction occurring during defendant's lifetime shall be considered. State v. Sedillos, 33 K.A.2d 141, 98 P.3d 651 (2004).

148. Preliminary breath test requires deep lung breath and is a search subject to constitutional protection; implied consent provisions of K.S.A. 8-1001 do not apply to K.S.A. 8-1012. State v. Jones, 270 K. 71, 106 P.3d 1 (2005).

149. All prior DUI convictions and diversion agreements, including those before the enactment date, are to be considered under section. State v. Sedillos, 279 K. 777, 112 P.3d 854 (2005).

150. Amendment of section increased penalty applicable to 2002 DUI, but did not affect defendant's prior acts and is not an ex post facto law. State v. Chamberlain, 280 K. 241, 120 P.3d 319 (2005).

151. Incapacity to drive safely can be established through field sobriety tests and other means. State v. Huff, 33 K.A.2d 942, 111 P.3d 659 (2005).

152. Defendant pleas to two separate DUI charges at same time were properly considered separate convictions. State v. Jarrell, 34 K.A.2d 480, 109 P.3d 1290 (2005).

153. Complaint that fails to list prior DUI offenses not defective but due process requires notification of severity level of offense being charged. State v. Moody, 34 K.A.2d 526, 120 P.3d 1156 (2005).

154. Charges of involuntary manslaughter while driving under the influence of alcohol and driving under the influence of alcohol are multiplicitous. State v. Brown, 34 K.A.2d 746, 127 P.3d 257 (2005).

155. Deficient sample breath test results admissible in defendant's prosecution; if attempt to operate vehicle is alternative means of committing DUI, state failed to prove. State v. Stevens, 36 K.A.2d 323, 328, 330, 346, 347, 138 P.3d 1262 (2006).

156. Legislature did not intend for preliminary breath test refusal to be admissible to prove DUI; no clear error in not having limiting instruction where evidence of DUI guilt was overwhelming. State v. Wahweotten, 36 K.A.2d 568, 577, 143 P.3d 58 (2006).

157. Unlike subsection (a)(1), subsection (a)(3) does not limit the introduction of "other competent evidence" to that found in K.S.A. 8-1013(f)(2). State v. Stevens, 285 K. 307, 319, 322, 172 P.3d 570 (2007).

158. Presentation of certified driving record listing defendant's prior DUI's sufficient to establish probable cause defendant committed felony DUI. State v. Shaw, 37 K.A.2d 485, 491, 154 P.3d 524 (2007).

159. Charge hereunder; notice provisions of K.S.A. 8-1001(f) are mandatory, not directory. State v. Kogler, 38 K.A.2d 159, 162, 163 P.3d 330 (2007).

160. Enhanced sentence under K.S.A. 8-1567 for DUI when child under 14 present construed and applied. State v. Whillock, 38 K.A.2d 431, 168 P.3d 56 (2007).

161. Court set fine at $2,500 but did not make findings required by K.S.A. 21-4607. State v. Dukes, 38 K.A.2d 958, 964, 174 P.3d 914 (2008).

162. Cited; circumstances provided reasonable suspicion to investigate DUI; suppression motion denied. State v. Pollman, 286 K. 881, 884, 885, 897, 190 P.3d 234 (2008).

163. Minimum fine under K.S.A. 8-1567 imposed; in such cases the district court not required to consider defendant's financial resources. State v. Wenzel, 39 K.A.2d 194, 202, 203, 177 P.3d 994 (2008).

164. Cited in involuntary manslaughter while driving under the influence of alcohol; instruction on intervening cause discussed. State v. Bale, 39 K.A.2d 655, 659, 182 P.3d 1280 (2008).

165. K.S.A. 8-1567(h) and 21-3608a held compatible; charge a matter of prosecutorial discretion. State v. Cott, 39 K.A.2d 950, 951, 953, 186 P.3d 826 (2008).

166. Cited; DUI jury instruction PIK Crim. 3d 70.02 discussed, no instructional error. State v. Garcia, 40 K.A.2d 870, 871, 873, 196 P.3d 943 (2008).

167. Cited; conviction hereunder reversed; court failed to inquire of jury whether verdict was jury's verdict. State v. Johnson, 40 K.A.2d 1059, 1060, 1062, 1069, 198 P.3d 769 (2008).

168. Cited; field sobriety tests, certain national highway safety administration standards not admissible, not scientifically reliable. State v. Shadden, 40 K.A.2d 1103, 1106, 199 P.3d 167 (2009).

169. Charges under K.S.A. 8-1567 and 21-3608a not multiplicitous and both may be prosecuted. State v. Cott, 288 K. 643, 206 P.3d 514 (2009).

170. DUI conviction reversed; a preliminary breath testing device must be approved under K.S.A. 65-1,107 before law enforcement use. State v. Pollman, 41 K.A.2d 20, 204 P.3d 630 (2009).

171. Conviction hereunder; district court without jurisdiction to modify sentence after sentencing concluded. State v. Trostle, 41 K.A.2d 98, 201 P.3d 724 (2009).

172. Conviction hereunder vacated for ineffective assistance of counsel. Moll v. State, 41 K.A.2d 677, 204 P.3d 659 (2009).

173. Conviction under K.S.A. 8-1567 upheld; court reviews reasonableness of blood draw. State v. Davis, 41 K.A.2d 1034, 207 P.3d 281 (2009).

174. State not required to prove elements of attempt under K.S.A. 21-3301 for aggravated intimidation of witness under K.S.A. 21-3833(a)(1). State v. Quinones, 42 K.A.2d 48, 208 P.3d 335 (2009).

175. K.S.A. 8-1001 is analyzed and applied; suppression of second refusal reversed because proper notices given. State v. Bradley, 42 K.A.2d 104, 208 P.3d 788 (2009).

176. Sufficient evidence found to support violation of statute. State v. Duncan, 44 K.A.2d 1029, 242 P.3d 1271 (2010).

177. DUI defendant did not disaffirm prior diversion agreement and thus diversion agreement could be counted as a prior offense. State v. Bishop, 44 K.A.2d 739, 240 P.3d 614 (2010).

178. This is a per se statute; breathalyzer's margin of error is merely one factor to be considered by the jury. State v. Finch, 291 K. 665, 244 P.3d 673 (2011).

179. Attempting to operate a vehicle, as an alternative means of unlawfully driving under the influence, is not defined and governed by statute. State v. Perkins, 46 K.A.2d 121, 257 P.3d 1283 (2011).

180. Trial court was required to consider defendant's financial status on the record prior to imposing $2,500 fine for felony DUI. State v. Nye, 46 K.A.2d 182, 261 P.3d 923 (2011).

181. District court need not consider any alternative method of payment of fines imposed where the alternative method is unavailable. State v. Grebe, 46 K.A.2d 741, 264 P.3d 511 (2011).

182. Involuntary manslaughter while driving under the influence is an alternative means crime. State v. Shaw, 47 K.A.2d 994, 281 P.3d 576 (2012).

183. The legislature did not intend to create an alternative means of committing the crime of driving under the influence by placing "or" between the word "operate" and the phrase "attempt to operate." State v. Suter, 296 K. 137, 290 P.3d 620 (2012).

184. The legislature did not intend to create an alternative means of committing the crime of driving under the influence by placing "or" between the word "operate" and the phrase "attempt to operate." State v. Ahrens, 296 K. 151, 290 P.3d 629 (2012).

185. The legislature did not intend to create an alternative means of committing the crime of driving under the influence by placing "or" between the word "operate" and the phrase "attempt to operate." State v. Perkins, 296 K. 162, 290 P.3d 636 (2012).

186. An intoxicated passenger who has exerted actual physical control of a vehicle may be convicted of DUI. State v. Sanchez, 48 K.A.2d 608, 296 P.3d 1133 (2013).

187. Statutory amendment that shortens "look-back" period applies to crimes committed after effective date of amendment. State v. Messer, 49 K.A.2d 313, 307 P.3d 255 (2013).

188. Sentencing court is to take into account prior DUI convictions that occurred on or after July 1, 2011. State v. Reese, 300 K. 650, 658, 333 P.3d 149 (2014).

189. In determining prior convictions, the date of the current offense and not the date of the conviction triggers the look-back period. State v. Wines, 50 K.A.2d 817, 821, 333 P.3d 917 (2014).

190. Defendant's uncounseled DUI diversion agreement can be considered a prior conviction without violating defendant's constitutional right to counsel. State v. Tims, 302 K. 536, 543, 355 P.3d 660 (2015).

191. Under the 2010 version of statute, the term "operate" is synonymous with "drive," and requires some movement of the vehicle; the taking of actual physical control of a vehicle, without an attempt to move the vehicle, is insufficient to meet the "attempt to operate" element of a DUI charge. State v. Darrow, 304 K. 710, 714, 374 P.3d 673 (2016).

192. If an out-of-state conviction for DUI is based on a statute that is broader than the Kansas statute, then the out-of-state conviction cannot be used for enhanced sentencing based on prior DUI convictions. State v. Stanley, 53 K.A.2d 698, 390 P.3d 40 (2016), rev. denied (Aug. 31, 2016).

193. Where a list to satisfy an element of a municipal ordinance is broader than the statute, the municipal ordinance may not be used for sentencing enhancements. State v. Williams, 54 K.A.2d 389, 401, 416 P.3d 1024 (2018).

194. Conviction from another state for driving under the influence may be used to enhance a DUI charge under K.S.A. 8-1567 from a misdemeanor to a felony or to increase the punishment of a recidivist, even though the other state's statute proscribes a broader range of conduct. State v. Mejia, 58 K.A.2d 229, 243, 466 P.3d 1217 (2020), rev. denied (Sept. 29, 2020).

195. Plain language of subsection (j) provides that an out-of-state DUI offense is comparable if the offense prohibits conduct similar to the conduct prohibited under K.S.A. 8-1567. State v. Patton, 58 K.A.2d 669, 682, 475 P.3d 14 (2020), rev. granted (Jan. 28, 2021).

196. Section does not prevent courts from following the identical-to-or-narrower-than rule of State v. Wetrich, 307 K. 552, 412 P.3d 984 (2018). State v. Myers, 58 K.A.2d 903, 912-19, 475 P.3d 1256 (2020), rev. granted (Jan. 28, 2021).

197. The legislature intended convictions from outside jurisdictions to be "comparable" offenses that qualify as a prior DUI even if the elements of the out-of-state offense are broader. State v. Myers, 314 K. 360, 376, 499 P.3d 1111 (2021).


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