A person who is arrested for DUI in Kansas may feel luckier than many other state's DUI arrestees. Kansas is a state that believes in second chances, or at least the possibility of second chances.
A person arrested for DUI in Kansas may be prosecuted under Kansas criminal laws. However, if an arrestee is a first time offender and no injury or death was caused by the DUI, he or she is first permitted to enter what Kansas calls a "diversion program." Such a program is a virtual anomaly in U.S. DUI law, and as a result Kansas DUI laws are often characterized as unusual or unique by commentators.
The diversion program works more or less like a contract between the arrestee and the state. Instead of having a speedy trial by judge or jury, the arrestee agrees to participate in an alcohol and drug education and/or treatment program. In addition to participation in this program, the arrestee pays a fine and agrees to the terms and conditions required by the state or the local jurisdiction. Often these terms and conditions require the person to abstain from drug and alcohol use for some specified period and sometimes will have additional components, like extra education or community service programs.
Though participation in the diversion program can be time consuming and may negatively impact an arrestee's work and personal life, the upside of participation is undeniable. If an arrestee completes all of the requirements of the contract within the specified period of time - generally somewhere around a year - he or she will no longer be charged with the DUI. Instead the charges are dismissed and everyone just goes home as though nothing ever happened.
The downside of the diversion program is that the prosecutor determines participation in the program. The defendant generally must admit guilt in order for the prosecutor to consider his or her participation in the diversion program. If the arrestee fails to complete the assigned tasks and programs, or if he or she violates the terms of the program, the charges will be reinstated and the criminal trial will proceed, despite any time spent in pursuit of the diversion program's completion.
If an arrestee is not eligible to participate in the diversion program and/or is convicted of DUI despite some attempt at participating in the diversion program, his or her record will be expunged five years from the date of conviction by filing a motion with the convicting court.
Like many other states, Kansas has a zero tolerance policy for intoxicated drivers under the legal drinking age.
Kansas prosecutes DUI under both the per se and intoxication theories, meaning that a person with a blood alcohol level of .08 percent or greater will be found per se guilty of DUI. In the absence of a definite blood alcohol content or if a driver refuses to be tested, a court may look to the circumstances surrounding the arrest in order to determine whether or not the arrestee was intoxicated. Kansas also uses the theory of implied consent in order to test arrested drivers for blood alcohol. This means that anyone who decides to drive a vehicle in Kansas has impliedly agreed to be tested for blood alcohol and a refusal to do so will be noted in his or her record. The refusal may result in suspension of driving privileges.
A first time offender can expect up to at least 48 hours of imprisonment. A court may require up to six months imprisonment and a fine between $2,000 and $5,000. These punishments and possible diversions apply only to the criminal charge and have no impact on the administrative proceedings conducted by the state's driving authority, which may suspend a first offender's license for up to one year.