With its new DUI law that took effect on July 1, Kansas is getting tougher with those who drink and drive. The law also establishes the state’s first centralized DUI database, allowing prosecutors easier access to a Kansas driver’s full DUI history.
Starting with the first offense, a motorist gets a misdemeanor, a 30-day license suspension, an ignition interlock for a year, two days to six months in jail or 100 hours of community service and a $1,000 fine. Penalties increase for each conviction, leading up to a fourth offense. At a fourth conviction, the driver faces a felony, 45-day license suspension, ignition interlock for three years, 90 days to one year in jail and a $2,500 fine.
These are good changes.
But there is a loophole in the new law, according to state Sen. Tim Owens, R-Overland Park, who spent five years trying to reform Kansas DUI laws. If the driver is asked by the officer to take a Breathalyzer test and fails, he or she is subjected to jail time, a fine and the ignition interlock device.
The loophole comes in when a driver refuses a Breathalyzer test. By refusing the test, the driver would face a one-year driver’s license suspension and the interlock for one year. However, although the driver could still be prosecuted for DUI, it’s far more difficult to gain a conviction without the Breathalyzer evidence. Prosecutors are left with field sobriety tests administered by the on-scene officer, said Owens, who has been a prosecutor, defense attorney and judge in his career. He said he’s seen cases in which someone refuses a test and evades a conviction for DUI.
Months before the new law took effect, Douglas County prosecutors were working with law enforcement to improve the chances of successfully prosecuting DUI convictions. District Attorney Charles Branson said his office requests that all officers get a judge to sign a search warrant to get a blood draw within two hours for all DUI suspects who refuse to submit to breath or blood tests as part of the traffic stop or DUI investigation.
“We are able to file cases that we were not able to file before,” Branson said of his policy.
That’s good news for prosecution, and helps to address the loophole in the new DUI law, but it sounds like a lot of work. Also, how many Kansas counties will do what Douglas County is doing?
Long term, it would be better for Owens and his colleagues to seek a statewide solution by closing the Breathalyzer loophole.