DUI Defense Attorney

An Overview of My Practice in Kansas City and Johnson County

Free Initial Consultations: 913-290-0938

I am Kevin Stuart Cavanaugh, an experienced drunk driving defense attorney serving Johnson County, Kansas, as well as nearby counties in Kansas. I also represent clients in Kansas City and Jackson County, Missouri, and nearby counties in Missouri. Please contact my Kansas DUI defense practice today to arrange a free first consultation if you or someone you know has been charged with DUI.

Below I have provided information about the laws and consequences relating to drunk driving in the state of Kansas. Contact me with any questions. My practice is devoted to protecting your rights and achieving the best outcome in your Kansas DUI case.

Kansas DUI Overview

In Kansas, the charge of Driving Under the Influence of Alcohol or Drugs (DUI) alleges that your Blood Alcohol Concentration (BAC) was .08% or greater within two hours of operating or attempting to operate a vehicle or that you operated or attempted to operate a vehicle while under the influence of alcohol, drugs or any combination of alcohol and drugs to a degree that rendered you incapable of safely doing so. Because Kansas law provides for conviction under either "prong" of this split standard, thorough and aggressive defense of a DUI charge requires the skills of a qualified Kansas DUI defense lawyer.

Kansas DUI cases are procedurally consistent with any other criminal charge in that the prosecution bears the burden of proving the charge "beyond a reasonable doubt." However, because of an increased public intolerance of drinking and driving, defending against a Kansas DUI charge has become increasingly more complicated, and the penalties for conviction have become much more serious.

In order to defend against a Kansas DUI case, your lawyer must be ready and able to attack the Prosecutor's evidence of intoxication. There are a number of possibilities that an experienced, thorough DUI defense attorney can pursue in order to defend the client. Countless DUI cases have been won by contesting the constitutionality of any stops, searches and seizures; challenging the precision and proficiency with which the arresting officer conducted the field sobriety tests; challenging the training and experience of the individuals who conducted any chemical tests as well as the test results themselves; and by testing the credibility and reliability of the statements of any witnesses. Contact me, Kevin Stuart Cavanaugh, at 913-290-0938.

DUI and Your Driver's License

Kansas DUI/DWI arrests give rise to two distinct and separate aspects of your case:

• the criminal proceedings, which are resolved in the municipal or district court where the case is charged and can result in fines and/or jail time; and
• the administrative proceedings, which can result in the suspension of your driving privileges.

It is extremely important to pay attention to both the criminal court case and the administrative driver's license case, as the deadlines, rules, procedures and burdens of proof are entirely different.

At the administrative level, the term of suspension that you face depends upon several factors: whether you failed the chemical test or whether you refused to submit to it; whether this is your first or subsequent test failure or refusal; and whether you are over or under 21 years of age. The time of suspension of driving privileges, depending on these factors, ranges from 30 days to permanent revocation of driving privileges.

Kansas DUI law provides you with the right to an administrative hearing wherein you or your lawyer can challenge the grounds upon which your license is suspended. If you request an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. In other words, the validity of your temporary driving privileges is extended until after the hearing, which is frequently scheduled months after the request. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case.

At the hearing, a number of issues can be raised in your defense, depending on the facts of your case. These issues include

• whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs
• whether you were given the legally required notices before being asked to submit to testing
• whether your actions constituted a legal refusal to take the test
• whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE)
• other due process or other constitutional issues.

If you are successful at the hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all. However, you must send a letter requesting an administrative hearing to the Kansas Department of Revenue within 10 court days of the day you received the DUI or your driving privileges will automatically be suspended, period. Thus, it is critical that you obtain the services of a well-qualified Kansas DUI defense lawyer as soon as possible after the arrest.

Another very important consideration is the fact that the Department of Revenue may also suspend your driving privileges if you are ultimately "convicted" of DUI or plead "guilty" to DUI at the Court level - regardless of the outcome you achieved at the Administrative Hearing. Even if the certifying officer fails to appear at the Administrative Hearing and the order of suspension is technically "dismissed," if you later are convicted or enter a plea agreement at the Court level, you still face suspension of your driving privileges. In other words, to avoid suspension of your driving privileges completely in any DUI case, it is essential that you prevail at the Administrative Hearing and avoid conviction at the Court level.

Potential Criminal Penalties

Kansas DUI cases in criminal court may result in fines, jail time, court-ordered suspension of your driving privileges, and the potential impoundment of your vehicle. The amount of fine and the length of the jail sentence are determined, in large part, by whether you have previously been convicted, or placed on diversion for DUI. It no longer matters where or how long ago a prior conviction occurred. Now, all prior DUI convictions and DUI diversions count, regardless of where or how long ago they occurred.

First Conviction

A first conviction for DUI is a Class B misdemeanor offense. The potential sentence is up to but not more than six months in jail. If convicted, the defendant must serve at least 48 consecutive hours in custody as a prerequisite to probation, unless the court allows the person to complete 100 hours of community service instead of the mandatory minimum 48 hours in custody.

The fine for a first conviction ranges between $500 and $1,000. At the administrative level, driving privileges are suspended for 30 days, followed by 330 days of restrictions for test failure. For a test refusal, driving privileges are suspended for a full year. The driver must undergo a drug and alcohol evaluation and will be required to successfully complete any and all treatment that is recommended by the evaluator.

Second Conviction

A second conviction for DUI is a Class A misdemeanor offense. The mandatory minimum underlying sentence is 90 days in jail; however, the sentence can be as long as one full year. The defendant must serve at least five consecutive days in custody as a prerequisite to probation, but the judge can order the defendant to serve 48 hours in custody followed immediately by at least 3 consecutive days of work release or house arrest to satisfy the 5-day requirement.

As with a first offense, completion of a substance abuse treatment program is required. The fine for a second conviction ranges from $1,000 to $1,500.At the administrative level, driving privileges are suspended for one year followed by one year of ignition interlock restrictions for a test failure and driving privileges are suspended for a full two years for a test refusal.

Third Conviction

A third conviction for DUI is an "unscored felony" punishable by up to 12 months in prison. The mandatory minimum underlying sentence is 90 days; however, the judge can order the defendant to serve 48 hours in custody followed immediately by at least 88 consecutive days of work release or house arrest to satisfy the 90-day custody requirement.

The fine for a third conviction ranges from $1,500 to $2,500. At the administrative level, the term of suspension for a test failure is the same as for a second offense: one-year suspension of driving privileges followed by one year of interlock restrictions. For a test refusal, the term of suspension is 3 years.

Fourth Conviction

A fourth conviction for DUI is also an "unscored felony." Like a third conviction, there is a minimum sentence of 90 days and a maximum sentence of 12 months in prison. A person convicted of a fourth or subsequent DUI, however, must serve 72 hours in jail before being eligible for a work release program. The fine for a fourth conviction is $2,500. Upon a fourth conviction, driving privileges are suspended for one year followed by one year of interlock restrictions for a test failure. For a test refusal, the term of suspension is 10 years. If there is a fifth conviction, driving privileges are permanently revoked regardless of whether the driver refused or failed the test.

Please note that the foregoing information presumes that you submitted to the Intoxilyzer Test as requested, but "failed" the test by providing a sample of breath in excess of .08% alcohol - but less than .15% alcohol. The Kansas Legislature recently enacted significantly greater administrative penalties for drivers who either test at or above .15% alcohol or who refuse the Intoxilyzer test outright.

Contact a Kansas DUI Lawyer with the experience and the dedication to get the best possible outcome in your drunk driving case. I offer a free initial consultation. For your convenience, I can accept major credit cards. Contact me, Kevin Stuart Cavanaugh, at 913-290-0938.

Implied Consent: Should You Refuse a Breathalyzer?

Sometime or another, we've all heard someone say, "If you're stopped for a DUI, don't blow and they can't convict you."

The Intoxilyzer blood alcohol test results will usually be the strongest evidence against you in a DUI case. Without that evidence, what can the prosecutor do?

Kansas has what's known as a dual standard for DUI prosecution - while a BAC reading of 0.08 will normally prove the prosecution's DUI case against you, it's not necessary. The alternative standard allows for reliance on "other evidence" such as you appearance, demeanor, odor of alcohol, actual driving behavior and performance on Standardized Field Sobriety Tests to show that you were incapable of safely operating your vehicle at the time of the stop.

If you refuse a breathalyzer but submit to a field sobriety test that shows you staggering all over a highway shoulder - especially if your test is video recorded - or if your driving was erratic and your speech slurred, and you reek of alcohol on top of it, it may be easy for the prosecutor to prove your guilt even without an Intoxilyzer Breath Test result. In Kansas, you may refuse to submit to a field sobriety test and there is no implied consent penalty for this type of refusal. If you do not submit to this test, the police have no observed "tipsy" behavior to write down.

Another consideration is the effect on your driver's license. If you refuse the breath alcohol test, you most certainly will have violated the implied consent law, which means that you're facing a driver's license suspension. If your priority is to avoid a criminal conviction, then refusal of the breath test may be your best strategy, particularly if you have enough sense at the moment to provide no other evidence of any kind. No field sobriety test, no statements to the police, nothing. Just bear in mind that refusal of the breath test may have far more severe implications with regard to your driver's license. NEVER TALK TO ANY POLICE OFFICER AT THE SCENE. NO CONVERSATION - PERIOD.

If your main priority is to keep your driver's license and you have no prior alcohol-related driving occurrences and no other vehicle or accident is involved, then you may be better off to submit to the breath test and take your chances on the DUI charge in negotiations or at trial. There is no one right answer to the question: "To blow or not to blow?" The best strategy depends largely on the details of each individual's circumstances. Either way, you need the advice of an experienced Kansas City DUI defense attorney. Contact me at my office for a free consultation.

DUI Diversion and Treatment Program

If you need the advice of a Kansas City DUI lawyer about whether you might qualify for an alternative to criminal prosecution on a drunk driving charge, contact me for a free consultation.

Although most the states do not have a program for alternative approaches to disposing of DUI charges, Kansas law provides a DUI diversion program for qualified defendants, which may present an option to mitigate the risk you may otherwise face.

If you have never been convicted of DUI, have never before entered into a diversion contract following a DUI arrest, and were not involved in an accident or collision resulting in personal injury or death, you might be eligible to participate in a DUI diversion program under Kansas law.

Kansas DUI diversion is essentially a contract between the municipal or county prosecutor and the person facing DUI charges. The defendant gives up the right to a speedy trial and to a jury trial, and obtains in exchange the opportunity to avoid a DUI conviction. Most Diversion agreements require the following:

• Payment of a fee for participation in the program
• Participation in either an alcohol or drug safety action program or a drug or alcohol treatment program, or both
• Refraining from the use of alcohol and drugs
• Regular reporting to a Diversion coordinator or monitor to confirm continued compliance with the Diversion program

If you complete the Kansas DUI or DWI diversion program, the criminal charge of driving under the influence is dismissed. However, failure to complete the program and fulfill all of the terms of your diversion contract can result in reinstatement of the criminal case against you, no matter how much time has passed. Additionally, you will be tried on stipulated facts, which means that you will have no opportunity to cross-examine witnesses, present your own evidence, or mount any meaningful defense.

If you are facing a first offense DUI charge in Kansas, the Diversion program may represent an excellent opportunity for you to keep your criminal record clean. Contact me, Kevin Stuart Cavanaugh, at 913-290-0938.

Kansas Driver's License Suspension

If you've lost your driver's license due to DUI or an implied consent violation, you need the help of an experienced and resourceful Kansas City driver's license suspension lawyer. Contact my DUI defense firm in Leawood for a free initial consultation.

Effective July 1, 2007, the Kansas Legislature enacted several amendments to the state's DUI laws. These amendments also affect the statutory Administrative Suspension provisions. Essentially, the sentencing and suspension provisions are significantly greater for drivers who either refuse the Intoxilyzer test or provide a breath sample in excess of .15% alcohol concentration.

First Offense:

If a law enforcement officer is deemed to have valid "reasonable basis" to request that you submit to an Intoxilyzer test and you fail the test by providing a breath sample in excess of .08% alcohol - but less than .15% - the Kansas Department of Revenue can suspend your license for a 30-day period, followed by 330 more days of restricted driving privileges. Some defendants apply for unrestricted driving privileges following the 30-day suspension by requesting an ignition interlock device.

If you test at or above .15% on a true first offense, or if you refuse the Intoxilyzer test, you face suspension of your driving privileges for a full year followed by an additional year of driving a vehicle only if it is equipped with an ignition interlock device.

Second Offense:

If you fail the test by providing a breath sample in excess of .08% alcohol - but less than .15% - the Kansas Department of Revenue can suspend your license for one full year.

If you test at or above .15% on second offense, you face suspension of your driving privileges for a full year followed by an additional 2 years of driving a vehicle only if it is equipped with an ignition interlock device.

If you refuse the Intoxilyzer test on a second offense, you face suspension of your driver's license for 2 years.

Third Offense:

If you fail the test by providing a breath sample in excess of .08% alcohol - but less than .15% - the Kansas Department of Revenue can suspend your license for one full year.

If you test at or above .15% on third offense, you face suspension of your driving privileges for a full year followed by an additional 3 years of driving a vehicle only if it is equipped with an ignition interlock device.

If you refuse the Intoxilyzer test on a third offense, you face suspension of your driver's license for 3 years.

Fourth Offense:

If you fail the test by providing a breath sample in excess of .08% alcohol - but less than .15% - the Kansas Department of Revenue can suspend your license for one full year.

If you test at or above .15% on fourth offense, you face suspension of your driving privileges for a full year followed by an additional 4 years of driving a vehicle only if it is equipped with an ignition interlock device.

If you refuse the Intoxilyzer test on a fourth offense, you face suspension of your driver's license for 10 years.

Fifth Offense:

If a law enforcement officer is deemed to have valid "reasonable basis" to request that you submit to an Intoxilyzer test and you fail or refuse the test, you face permanent revocation of your driving privileges. Contact me, Kevin Stuart Cavanaugh, at 913-290-0938.

Written Request for Hearing

Based on the foregoing, it is absolutely essential to put the Department of Revenue administrative hearing process into effect as soon as possible after a DUI arrest or implied consent violation. The only way to avoid the usual suspension penalties is to apply for a formal administrative hearing within 10 court days of the date you get the DUI. (The ONLY change in the law that is of benefit to Kansas drivers is that the Department of Revenue no longer counts Saturdays, Sundays and legal holidays against you in calculating the 10 day period in which to submit your written request for the hearing.) That will extend your temporary driving privileges until 30 calendar days after the date of the administrative hearing.

It is also essential to defeat whatever DUI charges you are facing in connection with your arrest or implied consent violation. This is because the Department of Revenue may issue an Order of Suspension following formal Court Conviction for DUI - regardless of what happens at the administrative hearing. Think of it as though the Department of Revenue has 2 chances to suspend your license: once at the administrative hearing and again at court.

For aggressive defense of a DUI or DWI charge, contact me, Kevin Stuart Cavanaugh, at 913-290-0938.

Law Office of
Kevin Stuart Cavanaugh
11115 Ash Street
Leawood, KS 66211-1763
Phone: (913) 290-0938
Office Phone: (913) 387-3193
Fax: (913) 387-3194
Fax: (877) 859-1874
Map and Directions

The Law Office of Kevin Stuart Cavanaugh is located in Leawood, Kansas and serves clients in the Kansas City metropolitan area of both Kansas and Missouri including Overland Park, Olathe, Leawood and Shawnee, and also the counties of Johnson, Wyandotte, Leavenworth, Miami and Shawnee in Kansas, and Jackson, Cass, Clay, and Platte counties located in Missouri.

Printer Friendly View
Add To Favorites