§ 35-250. Driving while under the influence of alcohol or drugs or both; penalties.

(a)

Driving under the influence is operating or attempting to operate any vehicle within this city while:

(1)

The alcohol concentration in the person's blood, breath, urine or other bodily fluid as shown by any competent evidence, including other competent evidence is 0.08 or more;

(2)

The alcohol concentration in the person's blood, breath, urine or other bodily fluid 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 operating 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 $750.00 nor more than $1,000.00. The person convicted shall serve at least 48 consecutive hours imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole. The court may place the person convicted under a house arrest program to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours imprisonment;

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 imprisonment and fined not less than $1,250.00 nor more than $1,750.00. The person convicted shall serve at least five consecutive days imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 120 hours of confinement. Such 120 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender's work day. The court may place the person convicted under a house arrest program to serve the five days imprisonment mandated by this subsection only after such person has served 48 consecutive hours imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender's location. The offender shall serve a minimum of 120 hours of confinement within the boundaries of the offender's residence. Any exceptions to remaining within the boundaries of the offender's residence provided for in the house arrest agreement shall not be counted as part of the 120 hours;

c.

On a third conviction a class A, nonperson misdemeanor, except as provided in K.S.A. 8-1567(b)(1)(D). The person convicted shall be sentenced to not less than 90 days nor more than one year imprisonment and fined not less than $1,750.00 nor more than $2,500.00. The person convicted shall be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days imprisonment. The 90 days imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 2,160 hours of confinement. Such 2,160 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender's work day. The court may place the person convicted under a house arrest program to serve the remainder only after such person has served 48 consecutive hours imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender's location. The offender shall serve a minimum of 2,160 hours confinement within the boundaries of the offender's residence. Any exceptions to remaining within the boundaries of the offender's residence provided for in the house arrest agreement shall not be counted as part of the 2,160 hours.

(2)

In addition, prior to sentencing for any conviction, 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 convicted of violating this section, who had one or more children under the age of 14 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 penalty imposed for a violation of this section. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the one month 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 this section involving drugs, 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)

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 $5.00 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.

(g)

(1)

Upon filing a complaint, citation or notice to appear alleging a violation of this section, and prior to a conviction thereof, the 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 of all criminal history record information concerning such person.

(2)

If the elements of a violation of this section are the same as the elements of a violation of K.S.A. 8-1567 that would constitute, and be punished as, a felony, the city attorney shall refer the violation to the district attorney for prosecution.

(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. Prior to sentencing under the provisions of this section, the court shall request and receive from the division a record of all prior convictions obtained against such person for any violations of any motor vehicle laws of this state.

(i)

For the purposes of determining whether a conviction is a first, second or third conviction in sentencing under this section:

(1)

Convictions for a violation of this section, K.S.A. 8-1567, and amendments thereto, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits, or entering into a diversion agreement in lieu of further criminal proceeding 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 or section 35-257 of this Code;

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. 21-5405(a)(3), and amendments thereto;

d.

Aggravated battery as described in K.S.A. 21-5413(b)(3), 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 a violation of a crime described in subsection (i)(2);

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 state which would constitute a crime described in subsection (i)(1) or (i)(2); and

c.

Receiving punishment under the uniform code of military justice or Kansas code of military justice for an act which was committed on a military reservation and which would constitute a crime described in subsection (i)(1) or (i)(2) if committed off a military reservation in this state;

(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, only once during the person's lifetime.

(j)

Upon conviction of a person of a violation of this section, the court may order that the convicted person pay restitution to any victim who suffered loss due to the violation for which the person was convicted.

(k)

Upon conviction of a person of a violation of this section, the court shall assess applicable costs authorized by subsection 23-13(a)(5) of this Code against the convicted person, unless the court makes a finding of undue hardship.

(l)

Upon conviction of a person of a violation of 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.

(m)

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 to avoid the mandatory penalties established by this section. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq., and amendments thereto, shall not constitute plea bargaining.

(n)

The alternatives set out in subsections (a)(1), (a)(2) and (a)(3) of this section may be pleaded in the alternative, and the city may, but shall not be required to, elect one or two of the three prior to submission of the case to the fact finder.

(o)

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 shall include 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. 2011, 21-5712, and amendments thereto.

(Code 1964, § 36-59(1)—(5); Code 1988, § 35-216; Ord. No. 53410, § 1, 1-7-1975; Ord. No. 55191, § 2, 8-3-1976; Ord. No. 63953, § 2, 7-1-1982; Ord. No. 64514, § 2, 8-18-1983; Ord. No. 64705, § 6, 9-20-1984; Ord. No. 64834, § 3, 7-1-1985; Ord. No. 65342, § 2, 8-18-1988; Ord. No. 65479, §§ 5, 6, 11-16-1989; Ord. No. 65822, § 6, 7-8-1993; Ord. No. 66164, § 15, 10-17-1996; Ord. No. O-55-01, § 1, 6-28-2001; Ord. No. O-19-04, § 2, 3-4-2004; Ord. No. O-8-08, § 3, 1-31-2008; Ord. No. O-25-11, § 1, 6-16-2011; Ord. No. O-51-12, § 5, 9-6-2012; Ord. No. O-49-15 , § 1, 8-13-2015; Ord. No. O-74-16 , § 1, 12-15-2016)

State law reference

Similar provisions, K.S.A. 8-1567.