§ 11.38.150. Driving under the influence of alcohol and/or drugs unlawful—Penalty  


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  • (a) No person shall operate or attempt to operate any vehicle within the city while:

    (1) 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;

    (2) Under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;

    (3) The alcohol concentration in the person's blood or breath as shown by any competent evidence is .08 or more. For the purposes of this section, "any competent evidence" includes (1) Alcohol concentration tests obtained from samples taken three hours or more after the operation or attempted operation of a vehicle, and (2) readings obtained from a partial alcohol concentration test on a breath testing machine;

    (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.

    (b) Violation of this section is a misdemeanor. Upon a first conviction of a violation of this section, a person shall be sentenced to not less than 48 consecutive hours nor more than six months imprisonment or, in the court's discretion, one hundred 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 sentence only after such person has served 48 consecutive hours' imprisonment.

    (c) On a second conviction of a violation of this section, a person 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 the 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.

    (d) On a third offense, unless such person has a prior conviction which occurred within the preceding ten years, not including any period of incarceration, the person convicted shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,750.00 nor more than $2,500.00. The person convicted shall not 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 ninety 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 2,160 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 2,160 hours.

    (e) 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 recommendations made by the provider after such evaluation, unless otherwise ordered by the court.

    (f) 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.

    (g) Any person convicted of violating this section who had one or more children under the age of fourteen 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 minimum mandatory 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 enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.

    (h) 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.

    (i) 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.

    (j) The court shall electronically report every plea of guilty or conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings or a complaint alleging a violation of this section to the Kansas Bureau of Investigation Central Repository. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the Division and Kansas Bureau of Investigation, a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of the state.

    (k) For the purpose of determining whether a conviction is a first or second, in sentencing under this section:

    (1) '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 this section, Section 11.38.155 of the Code of the City of Wichita, K.S.A. 8-1567 or K.S.A. 8-2,411 (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 this section 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 this section if committed off a military reservation in this state;

    (2) Multiple convictions of any crime described in this section arising from the same arrest shall only be counted as one conviction;

    (3) Only convictions for violating this section or the provisions of K.S.A. 8-1567 and amendments thereto occurring on or after July 1, 2001 shall be taken into account when determining the sentence to be imposed for a first or second offender. Nothing in this provision shall be construed as preventing any court from considering any convictions or diversion occurring during the person's lifetime in determining the sentence to be imposed within the limits provided for a first or second offense;

    (4) Any convictions for a violation of the following sections which occurred during a person's lifetime shall be taken into account, but only convictions occurring when such person was 18 years of age or older: (A) Refusing to submit to a test to determine the presence of alcohol or drugs as prohibited by Section 2 of 2012 House Substitute For Senate Bill 60 or Section 11.38.140 of the Code of the City of Wichita (B) driving a commercial motor vehicle under the influence, K.S.A. 8-2,144, and amendments thereto, or Section 11.38.155 of the Code of the City of Wichita; (C) operating a vessel under the influence of alcohol or drugs, K.S.A. 32-1131, and amendments thereto; (D) involuntary manslaughter while driving under the influence of alcohol or drugs, K.S.A. 21-3442, prior to its repeal, or subsection (a)(3) of K.S.A. 2011 Supp. 21-5405, 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;

    (5) It is irrelevant whether an offense occurred before or after conviction for a previous offense.

    (6) A person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, and amendments thereto, or a state statute or ordinance which prohibits the acts of this section, and amendments thereto, only once during the person's lifetime.

    (l) Suspension, restriction or suspension and restriction of the driving privileges of a person convicted of a violation of this section should be done in accordance with the provisions of K.S.A. 8-1014 and 8-1015, and amendments thereto.

    (m) The court shall be authorized to order any person convicted of a violation of this section to pay restitution to any victim who has suffered loss due to the violation for which the person was convicted.

    (n) 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 established pursuant to K.S.A. 12-4413 et seq. and amendments thereto, shall not constitute plea bargaining.

    (o) The alternatives set out in subsections (a)(1), (2) and (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 of the fact finder.

    (p) For the purpose of 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' includes 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 City Council.

    (3) 'Drug' includes toxic vapors.

    (4) 'Toxic vapors' are defined as including the following substances or products containing such substances: (a) Alcohols, including methyl, isopropyl, propyl or butyl; (b) Aliphatic acetates, including ethyl, methyl, propyl or methyl cellosolve acetate; (c) acetone; (d) Benzene (e) Carbon tetrachloride; (f) Cyclohexane; (g) Freons, including freon 11 and freon 12; (h) Hexane; (i) Methyl ethyl ketone; (j) Methyl isobutyl ketone (k) Naptha; (l) Perchlorethylene; (m) Toluene; (n) Trichloroethane; and/or Xylene.

    (q) Should any court declare any subsection, clause or provision of this section to be unconstitutional, such decision shall affect only such subsection, clause or provision so declared unconstitutional and shall not affect any other subsection, clause or provision of this section.

    (r) The Municipal Court shall have jurisdiction over a violation of this section occurring prior to July 1, 2011, and on or after July 1, 2006, which is concurrent with the jurisdiction of the district court for violation of K.S.A. 8-1567, and amendments thereto, not withstanding that the elements of this section are the same as the elements of K.S.A. 8-1567, and amendments thereto, that would constitute, and be punished as a felony.

(Ord. No. 45-347 § 1; Ord. No. 44-998 § 1; Ord. No. 47-507, § 1, 6-26-07; Ord. No. 49-023, § 1, 6-21-2011; Ord. No. 49-292, § 1, 6-26-2012)