How Do Prior DUI Convictions Affect a New DUI Charge in Kansas?

American criminal law tends to treat recidivism—additional convictions for similar crimes—very harshly. A striking example of this under Kansas law can be seen under Section 8-1567, dealing with DUIs. The exact same conduct can result in a vastly different classifications and sentences, solely because of previous convictions. Below is a brief overview of how previous DUI convictions work to change a current DUI charge.

DUI Convictions Under Section 8-1567
Section 8-1567 lays out the four separate classifications and corresponding sentences for DUIs based on prior DUI convictions. All four of these classifications require the state to prove the same elements beyond a reasonable doubt. The state can prove that the individual drove with a blood alcohol content of .08 or more (including up to three hours after driving) or the individual was too intoxicated from alcohol, drugs, or both to safely drive the vehicle. If the state is able to prove its allegations, the evidence of prior convictions will come in during sentencing. However, the state must provide notice of which classification it will seek upon filing. Failure to provide this notice will limit the state to the lowest sentencing range, as the Kansas Supreme Court noted in State v. Larson.

Not all convictions apply under Section 8-1567. Any conviction under the statute itself will fall within its reach and thus be considered during sentencing. Additionally, convictions for refusing to submit to a breath test or injury-causing crimes (such as aggravated battery or manslaughter) involving intoxicated driving are counted. When multiple convictions arise from single incident, only one conviction from each arrest may be counted. Further, municipal convictions and out-of-state convictions for DUIs may or may not apply, depending on a number of factors. Finally, convictions occurring before July 1, 2001 are not considered. It is important to note that this is a date specifically set within the statute, rather than a time limit based upon the conduct. This means as each year passes, the statute will account for older and older DUI convictions.

No Previous Convictions
When no previous convictions apply to the case, the DUI charge is classified as a Class B Nonperson misdemeanor. This classification carries a potential sentence of two days to six months in jail. The court may impose 100 hours of community service in place or jail time. A fine between $750 and $1,000 is also possible, at the court’s decision. House-arrest is available on this type of DUI, though the defendant will have to spend at least the first two days in jail before this is granted.

One Previous Conviction
Upon a second conviction, the DUI charge is elevated to a Class A Nonperson misdemeanor. The sentence for this classification will be between 90 days and one year in jail. The defendant will also be fined at least $1,250 and up to $1,750. Probation, suspension of sentence, and parole are not available until the defendant has served at least 5 days in jail to begin the sentence. House arrest and work-release programs are available for this classification.

Two Previous Convictions
The statute offers two types of classification for third DUI charges. The distinction turns on whether any conviction has occurred within the previous 10 years of the third charge. If the third charges come more than 10 years after the defendant’s release from jail (rather than conviction) for the most recent DUI, the third DUI is a Class A Nonperson misdemeanor. The defendant is again sentenced to between 90 days and one year in jail. A fine will also be imposed: at least $1,750 and up to $2,500. The defendant’s sentence may not be suspended, paroled, or changed to probation until he or she serves 90 days in jail. The court may allow for a work release program during these 90 days, allowing the defendant only time to go to work. House arrest is also available following the mandatory 90-day incarceration.

When the most recent DUI is within the preceding decade, the offense is “bumped up.” This result in the DUI being classified as a Nonperson felony charge. The sentence and fine are the same (90 days to 1 year; $1,750 to $2,500), and the defendant will again be required to serve the first 90 days in jail before any probation, parole, or suspension of sentence can take effect. House arrest may be granted after this 90-day period with the condition of electronic monitoring of the defendant. The main “bump up” between the two offenses isn’t time in jail, but the felony classification. Having a felony conviction can have several negative repercussions, such as prevention from obtaining certain jobs. It will generally (though not always) be treated even more severally than multiple misdemeanor convictions.

Three or More Previous Convictions
When the DUI is the fourth or beyond, the conviction is classified as a Nonperson felony. The sentence is 90 days and up to one year in jail, with a fine of $2,500. No parole, probation, or suspension of sentence is allowed until the defendant has served 90 days in jail. Both work release and electronic monitoring house arrest are available for these sentences. Following the completion of the sentence, the court may impose additional supervision requirements upon the defendant for one year. These requirements are aimed at ensuring the defendant does not drink and drive in the future, and may include interlock devices or substance abuse treatment.

Having multiple convictions for DUIs can quickly result in inflated sentencing and classification. Identical conduct will be punished with much harsher sentences and fines solely because of previous convictions. It can be difficult to determine which convictions are counted under the statute and what options are available outside of jail time for each. Contacting experienced counsel is essential to ensure that the idea of recidivism isn’t unjustly turned against an individual who has made some past mistakes.