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DUI DEFINED

The Kansas legislature has prescribed the offense of driving under the influence in Kansas Statute 8-1567(a).  The statute is wholly contained.  This means the statute details the entirety of the crime including the arrest to the prosecution and terms of sentencing.

The elements, as written by the legislature, are:

K.S.A. 8-1567. Driving under the influence; 

(a) Driving under the influence is operating or attempting to operate any vehicle within this state while:

(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;

(2) the alcohol concentration in the person's blood or breath, as measured within three hours of the time of operating or attempting to operate a vehicle, is .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 driving a vehicle.

The elements in plain English:

Put simply, the prosecutor essentially only needs to prove that (1) a person was driving while (2) under the influence of alcohol or drugs.  While this may seem straight forward, a knowledgeable defense attorney can, and should, challenge every piece of evidence to make a guilty verdict difficult or impossible.

The elements defined and explained:

In every Kansas DUI, the government must prove every element of a DUI as prescribed in K.S.A. 8-1567.  While terms like “vehicle,” may have ordinary meanings, the terms that follow also have legal requirements that must be met.  Those legal requirements, called elements of the crime, follow.

Operating or attempting to operate:

“Operate” as used in the K.S.A. 8-1567 should be construed to mean “drive,” thus requiring some evidence, either direct or circumstantial, that the defendant drove the automobile while intoxicated in order for the defendant to be convicted of DUI. The “attempt to operate” element was designed to encompass "those who merely tried but failed" to drive the vehicle. Therefore, "[m]ovement of the vehicle is not required in order to convict a defendant of DUI under the theory that defendant attempted to operate the vehicle."  Taking actual physical control of the vehicle is insufficient to attempt to operate that vehicle without an attempt to make it move.

Vehicle: 

Under K.S.A. 8-1485, "Vehicle" means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except electric personal assistive mobility devices or devices moved by human power or used exclusively upon stationary rails or tracks.

Within this state:

Requirements of jurisdiction and venue require that the offense be prosecuted in county and State within which any crime occurred.

BAC of .08 or above within 3 hours of driving:

A breath or blood alcohol test reading of .08 or more taken within the three-hour testing window is sufficient to support a per se violation of the DUI statute.

Rendered incapable of safely driving:

This element is most commonly used to prosecute drivers for DUI after the use of drugs - prescribed and properly administered or illegal.  The standard is typically very low as most courts are willing to accept an officer's testimony regarding a person's capability to pass field sobriety tests.

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