Here at Bell Folsom, P.A., we handle a lot of DUI charges. Despite that fact that some attorneys think that anyone can handle a DUI, they are incredibly complicated. When Mr. Folsom and Mr. Bell were prosecuting DUI’s, other prosecutors would often joke that trying a DUI could more complex than trying a murder case. One client that we recently signed illustrates how complicated DUI’s can be.
The client in question was recently charged with his second DUI. His first DUI had been over ten years ago, when he was a freshman in college. The first DUI came about after the client blew a .04 BAC with the Intoxilyzer 5000. Now, under Kansas law (K.S.A. 8-1567), you must blow a .08 or above to commit the crime of driving under the influence. However, under K.S.A. 8-1567a, it shall be unlawful for anyone under 21 to drive with a BAC of .02 to .07. However, K.S.A. 8-1567a does not have a penalty provision, meaning that the law does not say that if you’re under 21 and drive with over a .01, you have to serve so many days in jail or pay a fine of a certain amount. Many prosecutors and defense attorneys don’t understand this, and charge people under 21 with a BAC of .02 through .07 with DUI. Because most people don’t understand this law, clients sign up for a diversion on this charge even though it doesn’t charge a crime and the diversion is essentially worthless.
Here is where things get interesting: say you get a second dui charge once you’re over 21. The breath test on the Intoxilyzer 8000 reads .08 or above. A second DUI in Kansas carries a mandatory minimum five days consecutive jail sentence, with a potential one year sentence, plus a mandatory minimum $1,000.00 fine. It’s a serious charge. Under Kansas law, if you’ve already had a diversion for DUI, you cannot get a second one. So, if you got a worthless, unnecessary diversion when you were under 21, it will still stop you from getting a second diversion for your second, actual DUI charge.
This is the difference between a knowledgeable criminal defense firm and one that “dabbles” in criminal defense as well as any other type of law someone is willing to pay them to try. Would you be comfortable with a pediatrician performing open heart surgery on you? Of course not. You want the doctor who has specialized in cardiac medicine. The choice of a lawyer is no different. When it’s your freedom on the line, don’t pick an amateur.
As an epilogue, we have discovered a way to get a second diversion for those clients who unnecessarily signed a diversion when they were under 21 (unfortunately, it does not include requesting a refund from their first attorney). The law that prohibits a second diversion states that anyone who has received a diversion “under this section,” i.e. under this law, is not eligible for a second diversion. However, the first diversion was arguably obtained under K.S.A. 8-1567a, not K.S.A. 8-1567, so the client should still be entitled to the second diversion. This is an argument we have successfully made and saved our clients mandatory jail time and thousands in fines, fees, and court costs.
If you’ve been charged with a DUI, contact Bell Folsom, P.A. today. We make sure our clients don’t spend one more dime in fees or spend one more minute in jail than they absolutely have to under the law.