DUI and DWI Laws - Kansas DUI & Missouri DWI Journal

The following information is posted by Kansas DUI lawyer Jay Norton. Please return to this page periodically for new information regarding DUI & DWI laws in Kansas and Missouri.  This page displays all of Mr. Norton's submissions concerning DUI and DWI laws.

Thursday, December 10, 2009
Harsher Kansas DUI Laws Not Working

I have blogged about this before in previous years, but a new study just released by the National Highway Transportation Safety Administration (NHTSA) indicates that, while traffic fatalities are down around the country, the state of Kansas saw a huge jump in alcohol-related traffic fatalities in 2008. In fact, there was a 36% increase, the second highest in the nation. The numbers rose in 2007, as well. In other words, despite the much harser treatment of citizens accused of DUI in Kansas in the past couple of years, the problem is getting worse, not better. That is because suspending people's driver's licenses for longer and putting them in jail for longer is not really a solution. It may make a politician look "tough on crime", it may appease special interest groups like MADD, and it may make some people feel better, but it does not truly affect the number of people who end up in a traffic accident after consuming alcohol which is, after all, what the laws are meant to prevent.

From a previous blog post:

The drunk driving problem cannot be solved by harsher punishment. It is a social problem and chemical dependency problem. All of the jailings and all of the license suspending are apparently not making much of a difference. The Kansas DUI law needs another overhauling, but not to make the law stricter and harsher on people. We need sentencing laws that will actually work and make a difference in our society. As I have said before, until attitudes change in the community, and there are effective treatment and education programs, and until there is infrastructure like public transportation available, all of the harshest laws possible will not solve this issue. The number of DUI arrests and deaths continues to stay the same or go up. One definition of insanity is continuing to repeat the same behavior over and over expecting a different result. The DUI laws in Kansas are apparently less than sane. We need to rethink the approach.

Thursday, December 10, 2009
Missouri to Make Laws Harsher

Governor Jay Nixon has announced his intentions to make Missouri DWI/DUI laws much harsher. Included in his proposal is a bill to make it a crime to refuse a breath test, require that those who blow over a .15 only be prosecuted in state court (as opposed to city court), and enhance the penalties for those who blow over .15. A representative of MADD says this is "only a first step". Of course, there is no mention of treatment, increasing public transportation options or doing anything to get at the root of the problem. So, Kansas City DUI/DWI lawyers and the jails will be busier in the future, assuming this legislation gets passed, which is almost certain. Much like bills concerning child molesters, it is only the rare politician that will vote against anything concerning DUI law. So, I would expect that as long as the money can be found to fund all of this, the governor's wish list will be granted by the legislature.

Friday, June 26, 2009
Missouri Passes Interlock Law

Missouri DWI/DUI laws will change as of July 1, 2009, to require ignition interlock devices to be installed on the vehicles of all people convicted of a second or subsequent DUI. The story is here. The offender will be required to pay for the device for 6 months. The law is going to be applied retroactively, which means that it will be applied to people who were arrested before the new law was passed but whose cases are still pending. That smacks of an ex post facto violation (changing the law after a crime has been committed - i.e., changing the rules in the middle of the game), but this is another one of those DUI exceptions to the US constitution.

I certainly think that ignition interlock devices are much more humane than flat-out driver's license suspensions. In the Kansas City area, particularly in the suburbs or rural areas, without a car you cannot work. You also might find it hard to buy groceries, take your kids to school or get to alcohol or drug treatment. There is virtually no public transportation. I don't see us getting light rail anytime soon, and you can't get a bus or even a taxi outside of the urban core. So, suspending driver's licenses for extended periods of time is condemning people to either (1) being jobless, maybe homeless, etc., or (2) committing more crimes by driving while suspended. While "riding dirty", many decide to also drive without insurance.

There are a lot of problems with ignition interlock devices, including malfunctions that leave people stranded, but at least this law will allow people to get to and from work for the most part. This is as opposed to Kansas DUI law in which a first time offender who refuses a breath test or blows over a .15 will get suspended from all driving for one year, followed by having to have the interlock device for one year. That is for a person's very first mistake in his or her lifetime. Now, that is harsh.

Thursday, June 18, 2009
We're Not In Kansas Anymore: DUI Liimits Around the World

The Economist has an interesting map of all of the DUI legal limits around the world. Of course, Kansas DUI laws set the legal limit at .08 grams of alcohol per 210 liters of breath. That is actually higher than most of the rest of the world. There is a push by MADD to lower the legal limit to .05, so it may not be long until we drop the legal limit in this country, too.

Tuesday, April 21, 2009
Kansas DUI Laws Getting Harsher (Again)

Not a year goes by any more when the Kansas Legislature doesn't make the Kansas DUI Laws stiffer and harsher. This news was released today:

TOPEKA – The governor on Monday signed into law a bill aimed at fixing the state’s drunken driving laws and strengthening penalties for drivers who repeatedly drive while intoxicated.

Gov. Kathleen Sebelius, a Democrat, signed Senate substitute for House Bill 2096, which creates the Kansas DUI Commission to review the state’s laws, compare them with other states and suggest changes.

The commission, which will include legislators, judges, prosecutors and law enforcement officers, will submit an initial report by the start of the 2010 Legislative session and a final report by the 2011 session.

The new law would require county or district attorneys to check with the Division of Motor Vehicles regarding offenders’ history of driving under the influence and to check their criminal history with the Kansas Bureau of Investigation before proceeding with charges. That change will go into effect July 1.

Among other provisions, the proposal would also create stiffer penalties for people convicted for a third time of drunken driving and require they participate in an alcohol and drug abuse prevention program. That change would take place July 1, 2010.

The good news is that the advice to create a Kansas DUI Commission to take a look at what is working and what is not working appears to have been taken to heart. Of course, this report indicates that the panel will include only legislators, prosecutors and police officers. So, there is no one who will give a defense or civil liberties perspective. My guess is that this Commission will ultimately recommend a smogasboard of some of the worst of the DUI laws that we see around the nation and will result in several steps backward, not forward. I would love to be wrong about that.

Of course, the legislature couldn't let the bill creating the Kansas DUI Commission go by without also creating harsher penalties for current Kansas DUI cases while the Commission is doing its investigation and making its recommendations. Another story from today:

TOPEKA – A third or fourth conviction for driving under the influence in Kansas will mean more jail time starting next year.
Gov. Kathleen Sebelius signed legislation imposing the tougher penalty on Monday . It takes effect in July 2010.

The penalty for a fourth DUI conviction will be at least 180 days in jail, double the current minimum, and a fine of $2,500. The time served before being eligible for a work release program goes from four days to six days.

For a third conviction, an offender will face a minimum of 90 days and at least a $1,500 fine. The offender would be eligible for work release after two days in jail.

So, they have doubled the length of incarceration for 4th time DUI offenders and made it so that 3rd time Kansas DUI offenders can no longer be incarcerated in their homes (house arrest - which the offender pays for) but will have to be housed in a jail facility and then be released from jail to go to work (work release).

Again, every year that goes by the laws get harsher and harsher. Unfortunately, no one has paused to recognize that despite the annual revising of the Kansas DUI laws, the problem gets absolutely no better. Maybe that is what the Kansas DUI Commission will ultimately figure out and some common sense will begin to prevail in this area of the law. Don't count on it.

The constant push toward stiffer and stiffer fines and incarceration, as well as greater driver's license suspensions, only illustrates how important it is to find the best DUI lawyer in Kansas that you can possibly find to investigate and defend your case in every allegation. The days of a first time DUI being no big deal and something that an individual could handle on his or her own, without an attorney, are long gone. Every single DUI charge counts and will result in very harsh ramifications on an individual's quality of life and ability to make a living. Every single DUI charge will come back to haunt you later in some way, especially if you are ever accused again. The first DUI is the one to fight, to avoid being sucked in to the ever deepening black hole that has become Kansas DUI law.

Monday, February 23, 2009
More Changes to DUI Laws in Kansas

Another legislative session, another attempt to kick around the political football of Kansas DUI law. The Kansas City Star ran a front page story on Sunday about the bills in the Kansas legislature to change to the definition of DUI in Kansas, make the penalties harsher (again), and to change the length of Kansas driver's license suspensions. All of this in the face of a report by the Kansas Substance Abuse Policy Board calling for a 2 year study into the current Kansas DUI laws before a complete overhaul should occur. As the Board points out, Kansas DUI laws are "dysfunctional". The problem is, as they note, that the laws are a Frankenstein's monster which have been continually tinkered with and added to year after year, resulting in a law that is confusing, ineffectual and full of inconsistency. While the legislature cuts programs that assist in providing substance abuse treatment, they would like to increase the jail time for persons convicted of DUI.

Legislators love to talk tough and claim to be "tough on crime", especially when it comes to DUI, yet they repeatedly fail to recognize that the DUI numbers are going up, the problem is not getting better, and the harsher laws are only resulting in more repeat offenses, more people driving without licenses or insurance, and serious social costs that we cannot afford.

The Substance Abuse Policy Board has it right and the legislators have it wrong. Kansas DUI law is dysfunctional, not because DUI is not a problem, but because jail time and lengthy driver's license suspensions are not the answer. An alcoholic who commits a repeat offense DUI will go into jail an alcoholic. When he or she is released, whether it be after one day or one year, they will come out an alcoholic. Hitting the streets with no driver's license, no job, likely no family, and no support is not a recipe for sobriety and driving safety. It is exactly the opposite. The Kansas legislature should heed the advice of the people concerned with solving this societal problem and leave Kansas DUI laws alone for awhile. They should study what is working and what is not and then try to legislate, not from a place of political expediancy, but from a place of wisdom and genuine concern for the safety of our roads and due process of law. Let's hope that wiser heads prevail in this debate.

Tuesday, October 28, 2008
Administrative Hearings in California are Rigged

No real shocker, but Los Angeles area DUI defense attorney, Lawrence Taylor, has received a secret memo circulated to the administrative hearing officers in California taking them to task for dismissing administrative hearings against accused drivers. The memo directs them to ignore their independent judgment and rule the way the government wants them to. They are threatened with visits from their supervisors. This is not unique to California, but something I have seen in Kansas DUI administrative hearing proceedings. Hearing officers are sometimes taken to task by the Department of Revenue for dismissing cases and told to change their policies to ensure that drivers get suspended in the future. Or, a hearing officer will wait to make a decision on an issue until the Department of Revenue tells them how they want the hearing officer to rule. While it would seem that a fair and impartial judge of the facts and law would preside over these very important cases, don't count on it.

Wednesday, September 3, 2008
2007 NHTSA Statistics Released

I blogged last year about the fact that, despite the increasing harshness of Kansas DUI laws over the past few years, Kansas had one of the highest increases in drunk driving related fatalities in the entire nation. I had been pondering whether we were getting any return for the massive investment Kansas was making in DUI enforcement and whether these harsher laws were making us any safer. The 2006 statistics seemed to indicate "no". NHTSA has just released the 2007 statistics on traffic fatalities. Once again, Kansas is not looking so good. There were less deaths from automobile crashes this year in Kansas, but more allegedly involved alcohol impaired drivers. In other words, the Kansas DUI problem appears to be getting worse for the second year in a row, despite the evermore draconian DUI laws in Kansas, including the 2007 laws treating those who blow .150 or higher more harshly.

Basically, the numbers are this:

In 2006, 468 people died on the roads in Kansas. 125 of them are alleged to have been over .08. That is 26.7%

In 2007, 416 people died on the roads in Kansas. 114 of them are alleged to have been over .08. That is 27.4%

No matter how you slice it, the problem is not getting better. My previous post lays out why this is, so I won't repeat myself here. Needless to say, the laws that are causing more people to lose their jobs, lose their families, and drive without insurance, among other social problems, have thus far not been doing us any good in terms of making the roads safer.

Friday, July 4, 2008
Missouri BWI Catches Up With DWI

Another new Missouri DWI law that just passed lowers the legal limit for boating under the influence (BWI) to .08, which makes the limit the same for driving a vehicle under the influence. The story in the KC Star about it is here. I don't know if Kansas DUI laws have changed on this, but for years the legal limit for driving a carwas .08 but the legal limit for flying an airplane under the influence of alcohol was .10. So, you could be more intoxicated in a plane than in a car! Again, I have not looked recently, but I don't recall the Kansas DUI laws changing on that. Anyway, a lot of things can go wrong on the water so it is important to designate a driver of a boat just like it is important to designate the driver of a car. I hope everyone had a happy and safe Fourth of July.

Friday, July 4, 2008
Missouri Passes Interlock Law

Missouri DWI/DUI law has long provided for ignition interlock devices for persons convicted of a second or subsequent DWI. However, the enforcement of the interlock requirement was the responsibility of the courts and, frankly, it was spotty at best. Today, Missouri passed a new ignition interlock device that will place the responsibility for enforcing this penalty on the Missouri Director of Revenue. In other words, in order to get your driver's license back, DWI offenders will have to prove to the DMV that he or she has placed this device on his or her car. This is similar to the DUI law in Kansas and many other states. This will require a lot more people to outift their cars with the interlock and will result in a lot more red tape to get a license reinstated after a DWI. It will result in a lot more suspensions and driving while suspended, too. There is a national push by MADD to make ignition interlock a requirement in every DUI case, even first time offenses. In fact, they would like to make them standard on all vehicles, regardless of who the owner is or whether he or she has ever had a DUI. The governor's press release is here.

Monday, June 2, 2008
Smoking Ban Causing More DUI Fatalities

I was not a fan of the smoking bans before I heard this news, but this gives me a new reason to dislike them. An interesting study from the University of Wisconsin-Milwaukee finds that smoking bans lead to an increase in drunk driving fatalities. Apparently, the thesis is that people drive greater distances to patronize places where there is no such ban, thus exposing themselves (and everyone else) to greater risk of a traffic accident. Here is a snippet from an article about the study:

“Like they would to buy fireworks, lotto tickets or, in some cases, alcohol, people will often go to a neighboring jurisdiction that doesn’t have a ban,” says Adams. The number of smokers willing to drive extra distances offsets any reduction in driving from smokers choosing to stay home following a ban, he adds.

Using fatalities as a gauge in the study is more accurate than using data on DUIs, since drunk-driving laws are not uniformly enforced, he says.
The study’s evidence suggests that consumers are driving longer distances to smoke and drink, but this does not exclude other potential explanations.

“We can’t rule out the explanation that smoking bans might reduce the propensity to drink in moderation,” Adams says, “But in each and every instance of ‘border shopping’ we found, the increase in fatalities was true.”

With a new smoking ban about to go into effect in Kansas City, Missouri, and with similar bans already in effect in various cities in Kansas, it will be interesting to see if there is an increase in Kansas DUI cases or Missouri DWI cases. It is not inconceivable that some people will now drive over to Kansas City, Kansas, or to rural bars outside of cities in order to be able to smoke while they drink. This would be a tragic unintended consequence to the smoking bans.

Tuesday, August 21, 2007
Drunk Driving Deaths Rise in Kansas

Several weeks ago I blogged and questioned whether all of the continually increasing harshness of the Kansas DUI law was having any effect, whatsoever, on drinking and driving and the safety of the roads. There was a major overhaul of the Kansas DUI laws in 2001. Penalties increased, the 5 year "lookback" was jettisoned in favor of a lieftime lookback, and ignition interlock devices became mandatory. Hardly a legislative session has gone by since then without the DUI penalties being further increased and the DUI laws becoming a lot stricter. Most recently, in July 2007, the law changed to increase the penalties for those who blew over a .150, and to require the impoundment or immobilization of people's vehicles. In fact, a person accused of a DUI for the first time, who has no record of wrongdoing whatsoever, but who blows a .150 is supposed to lose his or her license to drive for one year. There are no hardship licenses, and no work privileges. This, of course, will destroy most careers, cause extreme hardship (financial, emotional, marital) and have a lot of unintended consequences (divorce, lack of child support, driving while suspended, driving without insurance). All of this for a person's very first offense.

Given the exponentially increasing harshness of the law I pondered whether Kansas society was at least getting the benefit of fewer DUI arrests and safer roadways. No surprise to me, NHTSA just released statistics which show that Kansas had one of the highest INCREASES in drunk driving fatalities both by numbers and by percentages. So, the problem is apparently getting worse? At least these numbers show it is not getting any better.

The drunk driving problem cannot be solved by harsher punishment. It is a social problem and chemical dependency problem. All of the jailings and all of the license suspending are apparently not making much of a difference. The Kansas DUI law needs another overhauling, but not to make the law stricter and harsher on people. We need sentencing laws that will actually work and make a difference in our society. As I have said before, until attitudes change in the community, and there are effective treatment and education programs, and until there is infrastructure like public transportation available, all of the harshest laws possible will not solve this issue. The number of DUI arrests and deaths continues to stay the same or go up. One definition of insanity is continuing to repeat the same behavior over and over expecting a different result. The DUI laws in Kansas are apparently less than sane. We need to rethink the approach.

Friday, August 17, 2007
Kansas & Missouri DUI Crackdown

The states of Kansas and Missouri are both undertaking an aggressive DUI crackdown campaign between now and Labor Day 2007. The Kansas campaign is funded by a grant from Kansas Department of Transportation and is titled: "Drunk Driving: Over the Limit, Under Arrest". I saw these words on a sign over I-35 on my way to work today. The Missouri campaign is titled, "You Drink & Drive: You Lose". The campaigns include a lot of advertising of the slogans, checklanes and other DUI enforcement activity.

The Kansas campaign seems fair, if you are over the legal limit you will be placed under arrest. Whether you will ultimately be convicted in court may be up in the air, but you can count on being arrested and charged in that situation. The Missouri slogan, though, is another misrepresentation of the law. There is nothing illegal about drinking and driving. It is only illegal to get drunk and drive, or to be over the legal limit while driving. There has been a great effort on behalf of some law enforcement agencies and the National Highway Transportation Administration (NHTSA) to spread misinformation to the public to convince them that any drinking before driving is illegal and "you lose". Remember the billboards from NHTSA that said "Buzzed Driving is Drunk Driving"? It is all part of the same campaign to confuse the public on this issue.

Missouri also has received a grant to place hundreds, if not thousands, of talking urinal cakes in the bathrooms of bars around Kansas City. When the urinal is used, a woman's voice attempts to convince the person using it that he should not drink and drive. It cleverly adds, "Your future is in your hands". That is pretty funny, and it might make someone who has had too many think twice about getting behind the wheel. As a taxpayer I am not sure I would have voted to spend the money that way, but it seems like a reasonable way to send a cautionary message to people who may actually be at risk. At least it is not another attempt to confuse the issue of drinking before driving with drunken driving (except it of course says, "You Drink & Drive: You Lose".

Friday, June 8, 2007
Big Changes to DUI Laws

Once again, the political football known as Kansas DUI Law was kicked around pretty hard by the state legislature. And, once again, the law has gotten stricter and harsher. Some of the changes include enhanced penalties for drivers who blow over a .150. If a person blows over a .150 and is convicted of a DUI, or loses his license through the administrative process, the person's license is suspended for one year on the first occurrence, followed by one year of driving with an ignition interlock. On the second occurrence it is one year of suspension followed by 2 years of ignition interlock.

The driver's license penalty has also been increased for persons who refuse a breath or blood test. On the first occurence of a refusal the person's license is suspended for one year, followed by one year of restriction to only driving a vehicle equipped with an ignition interlock device.

The legislature has also mandated now that, on a second or subsequent DUI conviction that the court shall order each vehicle owned or leased by the person to be equipped with an ignition interlock device or be impounded or immobilized for 2 years. It doesn't matter whether having your car impounded for 2 years will make you or someone else in your family lose employment, lose the ability to go to school or lose the ability to obtain medical care. It is not all bad, though, the law does say you are allowed to remove your personal possessions and property from the car before it gets taken away.

Whenever a person is subject to a restriction to an ignition interlock device the person must submit proof that he or she complied with the full term of the interlock requirement before the license can be reinstated.

I blogged earlier about the fact that the law would allow people who are suspended for DUI's to obtain a moped license. Well, that is over now.

Another interesting thing is that police can now pull over people under the age of 18 if they don't have a seatbelt on. The law has always been that everyone must have a seatbelt on. However, law enforcement was not allowed to pull someone over solely for not having a belt on. Now, for those under 18, police can do so. I do not understand how an officer is going to know that the person is under 18 without it being purely guesswork, but we'll see how that works out.

It seems that each year the legislature amends the Kansas DUI Laws to make them harsher (and more confusing). It is getting to the point where an attorney must focus on the area of the law or he or she seriously risks committing malpractice and/or giving clients bad advice. It would be interesting to look at the DUI and DUI fatality statistics in Kansas for the past 10 years. My understanding is that, even though the laws have gotten progressively harsher, especially against those under 21, that the number of DUI cases and DUI fatalities has not gone down. In other words, I am not convinced that continually increasing penalties is having any effect. Minors continue to consume alcohol, people of all ages continue to drive under the influence, they drive while suspended, and they subvert ignition interlock devices. All of the court ordered treatment won't make someone stop drinking unless he or she really wants to. I think the DUI issue needs to be addressed in other ways. Until driving drunk becomes socially unacceptable in Kansas, and until people are educated in an honest way about the dangers of drunk driving, and maybe until there are alternative means of transportation (can you even get a taxi anywhere in Kansas?), there will be DUI cases. Until then, apparently, we are going to fill the jail cells and impoundment lots with people accused of drinking and driving, many of whom are convicted solely based on a machine that is inherently flawed.

Friday, June 21, 2006
Expungement for DUI in Kansas not much longer...

House Bill 2554, which has been signed by the Governor of Kansas, says that after July 1, 2006, there will no more expungements of diversions or convictions for DUI in city courts. You can expunge just about any other diversion or conviction, but not a DUI. Why are DUI cases treated differently? I am not entirely sure, but Kansas DUI cases are always treated differently. I suppose the rationale is that the prosecutors are having a hard time finding prior DUI's that have been expunged. Now that DUI diversions and convictions are counted against a person for his or her entire lifetime, they are trying to eliminate hurdles to finding prior cases. Expungement did not seem to be stopping them in the years prior to July 1, 2006, but I can't think of any other reason to all of a sudden start treating Kansas DUI's differently than all of the other possible crimes. So, no more DUI expungements.

If you received a DUI diversion or conviction prior to July 1, 2006, I do believe that you can still have that case expunged. The courts should look to the expungement statute that was in effect at the time you received a DUI in Kansas. So, this new law should be applied prospectively and not retroactively. In other words, the only DUI's which will not be expungeable are those that occur after July 1, 2006. But, you never know how the law will be applied, especially Kansas DUI law.

Friday, June 9, 2006
MIP in Kansas

The Kansas Court of Appeals handed down an unpublished opinion recently that addresses a problem I have seen very frequently in Johnson County, Kansas Minor in Possession (MIP) cases. A typical MIP case starts with the police officers hearing about or stumbling upon a party at which underage drinking is suspected. They will look through the windows or contact people who are outside of the home where the party is located and see if they can determine that young people are, in fact, drinking. Then, either by consent of the homeowner/partythrower, or without it, they enter the home. This is where it gets interesting from a constitutional perspective.

The police will often round up all of the people at the party and sequester them in the basement or some other room of the house. They announce that no one is leaving until they have had a chance to ID everyone and see if they are MIP or not. This may take an hour or more. A police officer will guard the door so no one can leave without going through their unofficial "checklane", even if they are innocent and have not been drinking, or are not underage.

The Court of Appeals, in State v. Flesher, held that this violates the Fourth Amendment right to be free from unreasonable search and seizure. This is an unpublished opinion so it does not carry as much weight as a published opinion. Courts are not required to follow it. However, it is fairly persuasive and should give prosecutors, defense attorneys and judges a pretty good idea of what the appellate courts will do if the issue is presented to them.

Some language from the case:

Here, the officers detained all the party guests located in the basement, including those who were legally drinking, for up to an hour while they investigated each of them one by one. Such a blanket detention was not reasonable under the Fourth Amendment. At the time the officers detained Flesher, they did not have any specific and articulable facts that Flesher had committed or was about to commit a crime. That did not occur until approximately 22-29 minutes later.

This case ought to put an end to this prevalent practice by Johnson County police agencies. I would not bet on it though. For more information about Kansas MIP law, see http://www.nortonhare.com/minor_in_possession.htm.

Friday, October 7, 2005
Buzzed Driving? Part II

Here is a link to an article about what I was talking about in the last post. MADD wants the legal limit lowered even below .08. The idea is that, eventually, it will be illegal to have anything to drink before driving a car, despite the fact that a person might not be impaired or otherwise unsafe to drive.

http://www.fftimes.com/index.php/6/2005-10-06/22975

They want the legal limit lowered to .05. Then it will be .02, followed by .000. Maybe then they can go after people who drink a cup of coffee and drive.

Wednesday, September 28, 2005
Buzzed Driving?

The other day I was driving northbound on I-35, just past the on-ramp from Antioch, when I noticed a new billboard. It is white with big black letters that say "Buzzed Driving is Drunk Driving". This billboard is sponsored by the National Highway Transportation Administrative (NHTSA) and the AdCouncil. NHTSA is the agency that came up with the so-called "field sobriety tests".

I saw this billboard on the same day that I read an article in the Metropolitan section of the Kansas City Star entitled "Kansas Curbs Drunken Driving" (Aug. 25, 2005). The article indicated that the number of fatalities in which one of the drivers was over the legal limit had dropped over a one year period. One could quibble with the numbers, but that is not the purpose of this entry into the Kansas DUI blog.

What struck me, on the day when the government advised that "buzzed" driving was drunk driving, was a quote from Mary Ann Khoury, president and chief executive of the DUI Victim Center of Kansas. Ms. Khoury says, "What I look at are all alcohol-related crashes, not just necessarily .08. They're not giving you the real picture because a person at .07 kills."

The law against driving while intoxicated is a good law. It prohibits driving when you are so intoxicated that your mental and physical abilities are impaired to the extent you cannot safely operate a car. Getting a "buzz" generally means one has consumed some alcohol and can feel the effects thereof to some degree. Feeling a buzz is usually a good sign to stop drinking if one is planning to drive a car in the near future. However, this idea that buzzed driving is the same as drunk driving is false, misleading and an effort to persuade drivers, and the judges and jurors who sit in judgment of those accused of driving under the influence, that any consumption of alcohol prior to driving is illegal. That is not the law.

This is part of the modern prohibition movement in America. The legal limit has been lowered time after time as the political football of DUI gets kicked around by MADD and state legislators. The legal limit started at .15, then went to .12, .10 and recently .08. For a good history and discussion of this issue check out the blog of attorney Lawrence Taylor http://www.duiblog.com/2004/10/20 (MADD and the New Prohibition).

Do drivers kill at .07? Of course they do. Do they kill at .04? Yes. Do they kill at .000, when they are not under the influence of any alcohol or drugs? Absolutely, and to a greater extent than intoxicated drivers do. There is a concerted effort underway to prohibit driving after the consumption of anything, whatsoever, or at least give the impression that it is illegal to do so. That is not the law. That should not be the law.

I don't advocate driving with a buzz, and certainly would not suggest that anyone drive with more than a buzz. But, this effort to link the slightest alcohol consumption with "drunk driving" is an attempt to mislead the public and prevent those who are stopped for DUI, but who are not actually drunk from getting a fair trial.

Tuesday, July 5, 2005
Will they OK change to Kansas DUI rules in the middle of the game?

As I reported in my April 30, 2005, blog, July 1st marked the beginning of the new DUI law in Kansas that the Kansas Department of Revenue will look back at your entire life for determining how long to suspend your driver's license. Previously, they only went back 5 years. An unexpected twist to this new law which I just confirmed last week, a mere 3 days before it went in to effect, is that the Department of Revenue is going to apply this new law retroactively in the case of persons convicted of DUI.

What does that "legalese" mean? As we know, there are two different components to a DUI case: (1) the criminal case, and (2) the administrative driver's license case. When it comes to the administrative case, the new law about lifetime lookbacks will only apply to those people arrested after July 1, 2005 (that is, the law is applied prospectively). However, on the criminal side, if you are convicted of a DUI after July 1, 2005, regardless of when the arrest occurred, the lifetime look back on the license suspension will apply (that is, the law will be applied retroactively to cover those arrested before the law went into effect). The date of conviction will be considered by the Dept. of Revenue to be the day you pled guilty or were found guilty after a trial.

If that sounds like changing the rules in the middle of the game, you might be right. Usually, when substantive changes are made to a law or the penalties for a crime, it can only be applied prospectively. To do otherwise violates the prohibition against ex post facto laws in the United States Constitution. The Kansas Department of Revenue thinks it can get around this constitutional problem. Their argument is that the driver's license suspension is a collateral consequence of a DUI conviction in Kansas and is not directly related to the punishment set out for the DUI. It remains to be seen how the Kansas appellate courts will answer that question. Don't be surprised when they say it's OK to change the rules in the middle of the game.

Monday, May 09, 2005
Legal Limits for Drugs?
A bill currently sits before the Judiciary Committee of the Kansas legislature which would change the nature of the DUI laws in Kansas in a drastic way. It is anybody’s guess right now as to whether the bill will ultimately pass or die. Personally, I expect it to pass - if not this year then in the near future.

Currently, the law is that if your breath, blood or urine contains .08 grams of alcohol it is presumed that you are too impaired to drive a car. Senate Bill 287 would change the DUI statute, KSA 8-1567(a) to set “legal limits” for the amount of drugs a person may have in his or her blood or urine and operate a vehicle. These amounts are expressed in nanograms. The legal limit for marijuana is one (1) nanogram! That is, if you are stopped while driving and your blood contains even 1 nanogram of marijuana (or THC), it is PRESUMED that you are too intoxicated to drive, just as if your breath alcohol content was .08 or greater. The legal limit for cocaine would be 50 nanograms, 500 nanograms for methamphetamine, and 150 nanograms for codeine.

One of the major controversies surrounding legal limits for drugs is that, whereas alcohol dissipates from the human body very quickly, traces of drug use linger in the body long after the impairment from the drug has worn off. Marijuana can remain in the system for weeks, and cocaine for days. There is a danger that a person who smokes marijuana on Saturday when he is not driving, may still test positive on Monday when he is behind the wheel, even though he is no longer impaired.

Just like alcohol, drugs affect people in different ways. Some people can tolerate a greater amount of a substance without becoming impaired, while others may become impaired after only a small exposure to a drug. There is also the problem of false positives, which are very common in my experience with drug testing. Another major problem is that many PRESCRIPTION and OVER-THE-COUNTER drugs may cause a positive test for substances like amphetamines, codeine or morphine.

Again, we don’t yet know whether this bill will pass and become the law in Kansas. It is already the law in Nevada and about 10 other states. It is the emerging trend in DUI jurisprudence and it is coming. These DUI’s will be treated and punished just like alcohol related DUI’s. Everyone will count for life. It will take extremely educated attorneys and the assistance of experts to properly defend these cases. For more information about drug impaired driving enforcement and the future of the law in this regard see “The Gathering Storm: Drug Recognition and Zero Tolerance Laws” .

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