Miscellaneous - 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 a clooection of Mr. Norton's various submissions.

Monday, December 28, 2009
The Problem with Law Enforcement Labs

Earlier in 2009, the National Academies of Science released a report which conclusively found serious deficienies in the way that forensic criminology labs are run in America. the problems include a lack of standard certification programs for labs, a lack of credentials for lab technicians, and a lack of peer-reviewed bases and methods for testing evidence. The report also points to the common problem that the "scientific labs" are almost always directly connected to a law enforcement agency and, therefore, have a built-in bias and are not truly independent, scientific agencies. In fact, law enforcement, in the form of the Justice Department, attempted to derail the National Academies report and to infiltrate the study panel with lobbyist for DNA companies. Luckily that did not work and the report was released to the dismay of many forensic labs. Fraud in these so-called crime labs is common. This website documents hundreds of cases of forensic fraud. A forensic chemist for 21 years in Oklahoma, nicknamed "Black Magic", whose evidence helped have 23 people sentenced to death, was fired because of forensic fraud. Hundreds of cases in Detroit were recently called into question by lab fraud. Unfortunately, this is not uncommon and people are behind bars and even put to death on shaky science.

This forensic fraud is not limited to the evidence in murder cases or other serious felonies. it happens in DUI cases a lot, as well. Recently, a crime lab in Colorado Springs, Colorado was found to have falsely inflated the breath tests of at least 82 people. Toxicology reports in Colorado have been falsified before. A toxicologist there falsified reports in thousands of cases in Colorado, Texas and California. I have blogged before about the frequent cheating involved in breath test cases from around the country including on thousands of breath test DUI cases in Houston, Texas. There are people who have been wrongly convicted of DUI and/or had their driver's licenses and livelihoods taken away based on very shaky science.

The bottom line is that science is only as good and as honest as the people running it. A breath test or blood test in a Kansas DUI case is scientific evidence. That evidence should be based on accurate principles of science, and actual scientists should have something to do with it. Instead, police officers are in charge of the maintenance and oversight of their own breath testing programs. They are entrusted to conform to the requirements of science by the Kansas Department of Health & Environment (KDHE), the agency responsible for overseeing the testing of human breath for law enforcement purposes in Kansas. However, the KDHE can hardly be called an independent scientific agency. That agency has routinely demonstrated that it is nothing more than an arm of law enforcement, consistently shilling for and covering for the police when it comes to breath tests. Recently, the KDHE watered down their regulations for breath testing in Kansas to make it easier for police agencies to get certified, perform breath tests and make them admissible in court. Then, the KDHE failed to require that any of the agencies or the machines be certified pursuant to the new regulations. That issue is currently pending before the Kansas Supreme Court. The KDHE only requires one breath test, when an overwhelming majority of states require two (good science always requires that you do a replicate/duplicate test to confirm results - even Santa checks his list twice). All Kansas DUI blood tests are tested by the Kansas Bureau of Investigation (KBI). Again, that agency is not exactly neutral since the KBI is the chief law enforcement agency in the state.

The forensic science being employed in Kansas DUI law is just as lacking as the science reported on around the country by the National Academies. Kansas ought to adopt the recommendations of the National Academies of Science and institute an overhaul of the scientific practices in this state with respect to breath and blood testing, as well as other forensic testing. Kansas DUI cases are largely reliant on science and breath tests ought to be treated like science, especially if we are going to put people in jail and take away their ability to drive based on that science.

Wednesday, November 9, 2009
The Power of Video

I have found that in every Kansas DUI case, as well as just about every other kind of case, there are at least two sides to every story. Often, the way that the arresting officer and the person who got arrested remember the facts is quite different. For the last decade or so, though, there has increasing been a neutral witness to these cases. Video cameras that capture video and audio recordings of interaction between a police officer and a citizen can make a huge difference in DUI cases. I have probably had more successful outcomes on behalf of my clients because of video than for any other reason. Video really tells the truth, the whole truth and nothing but the truth.

Two recent examples demonstrate the power of video in criminal cases. In the first case, Hollywood, Florida police officers are captured on video discussing how they are going to frame a person for a car accident. You can see the video here. In a second case, police are caught giving each other a hand signal for planting drugs on a person, and then, in fact, planting the drugs on the guy. You can see that video here. These are just two recent examples. Video in police vehicle is increasingly capturing police misconduct. That is a good thing. As I have said many times here before, most police officers are dedicated professionals doing a difficult job. However, there are always a few who should not be in the position of power that they are in and video can make a big difference.

Likewise, video regularly captures people committing crimes and helps law enforcement to solve crimes. A video in a Kansas DUI case that shows that a person appears to be drunk can be the most powerful evidence a prosecutor has. In addition, video evidence can refute claims by citizens of police brutality or other misconduct that can be difficult for an officer to defend against. So, videotaping of contacts between police and citizens can be beneficial to both sides of the equation. It provides the only neutral, unbiased recounting of what occurred. If the police are doing their jobs properly, there should be nothing to hide and the video will only bolster his or her case.

There is a national push for the videotaping of all interrogations of suspects of crimes. Many police departments already require it. South Carolina DUI law mandates the videotaping of all DUI arrests from the time that the officer's lights come on through field sobriety tests and the breath test at the station. Kansas ought to follow the lead of South Carolina.

Kansas DUI laws ought to require that field tests and breath tests be videotaped in all cases in which it is possible. There are police departments which have not installed dash-mounted videocameras in their cars even though the technology has been available and cheap for decades. There are officers who are assigned DUI and traffic enforcement by their departments who, apparently purposefully, do not drive the cars that are equipped with videocameras. Many of the major sheriff's departments in eastern Kansas do not videotape the breath tests of suspects although such technology is cheap and widely available. So, when a dispute comes up between an officer and a Kansas DUI suspect about whether the person was observed for 20 minutes, or belched before the breath test, or was read the Kansas Implied Consent Advisories, etc. it is one person's word against the others. Given that the driver has the burden of proof at the administrative driver's license hearing, yet is allowed no video or any way to obtain the evidence he or she will need, the neutral, unbiased evidence from a videocamera can make a huge difference. There really is no rational opposing view on this issue.

Friday, April 24, 2009
CEO of MADD Becomes CEO of NHTSA

The chief executive of Mothers Against Drunk Driving (MADD) has just been named by President Obama to be the head of the National Highway Transportation Administration (NHTSA). NHTSA is the agency that oversees highway safety and came up with such DUI enforcement "tools" as field sobriety testing. The man's name is Chuck Hurley and he is, by all acounts, an anti-alcohol zealot and proponent of heavy regulation by the government. Under his watch, MADD attempted to make it a law the every car sold in America had an ignition interlock device installed when it came off of the sales lot.

I suppose it was only a matter of time before NHTSA and MADD merged into one entity, since they have been playing out of the same book for so many years. Even so, it ought to seem a little odd that the head of one of the major special interest groups attempting to influence agency policy is then made the head of the agency. Only in America would this not be considered totally corrupt.

You can read rants about this nomination at the Agitator Blog. Suffice it to say, under MADD's watch, you can expect our country's highway safety agency to be very busy crafting regulations to impose on all of the states for more stringent enforcement for seatbelt, DUI, ignition interlock, teenage driving and other issues concerning th motoring public. He would also like to lower the legal limit to .04 for DUI.

Tuesday, December 23, 2008
Have A Safe Holiday

Friday, September 12, 2008
Ohio Police Caught Cheating on DUI Exam

This story is kind of old news, but I am just getting around to discussing it. In July of 2008 the Ohio Inspector General released a report revealing his findings after an investigation into a cheating scandal in which Ohio law enforcement officers, including high ranking sergeants of the Highway Patrol were caught cheating on the recertification test for the state's breath testing machine. Each year in Ohio police officers have to take a short test to make sure that they have the minimum knowledge and training to be administering breath tests. The test is extremely easy to pass. However, a group was caught using a cheat sheet during the test. In fact, the cheating was so rampant that it was well known among the law enforcement community. You should really check this story out because it is pretty scary. There is a link to the Inspector General's report.

The story is significant, not because it says anything about police officers in general (they are human, too), but because it exposes an ugly truth about the "science" of DUI. Kansas DUI cases are all about the so-called science. Driving behaviors are said to carry statistical significance, field sobriety tests are said to be scientifically validated to determine impairment, and the breath test machine is based on all sorts of scientific principles including infrared spectroscopy, Henry's Law, human partition ratio, etc. The area of Drug Recognition Evaluation (DRE) is all based on medical diagnosis using blood pressure, pupil size, skin and muscle quality and the Horizontal Gaze Nystagmus (HGN) test. The science is not all it is cracked up to be in the first place but, in addition, occasionally there is cheating.

The problem is, of course, that police officers are not scientists and they are not hired to make medical diagnoses. Yet, they are expected to employ all of these techniques out on the street. Entire DUI cases rise and fall on the findings, opinions, training and experience of Kansas DUI officers. A person can be convicted solely because of what number a machine spits out (the Intoxilyzer 8000 in Kansas). Who is looking to see if they have received the proper training, are employing the latest technology, and employing it properly? Kansas DUI defense attorneys had better be.

Kansas DUI officers don't even have to take a test to get recertified each year on the breath test machine. All they have to do is run a couple of tests in front of another officer or someone from the Kansas Dept. of Health and Environment without screwing it up. It is not too difficult. In fact, the regulations concerning quality control of the breath test devices used in Kansas are laughably unscientific and minimal. Yet, our law firm has uncovered cheating and document falsification in a local law enforcement agency concerning the accuracy of a breath test machine even very recently. It resulted in a lot of breath tests being thrown out. This may not be the norm, but it does happen.

People are arrested and convicted every day in Kansas for DUI. They lose their driving privileges, they lose their freedom, they lose their jobs and they live the rest of their lives as a convicted criminal. It is hard to have any confidence in those harsh results being justified if the science is being rigged or there has been cheating for certification. Every case demands scrutiny. Every certification requires verfication. A good Kansas DUI attorney has to flip over every single rock and look underneath it to determine whether the science is being fudged, or the paperwork is out of order, or there are any other suspicious issues that might undermine confidence in the case. This egregious episode from Ohio is just a reminder why every case needs serious attention and serious investigation. The best Kansas DUI attorneys do it in every case, every time.

Monday, June 23, 2008
The DUI Treadmill

There is an interesting article from an Aspen, Colorado newspaper about how DUI cases unfold in that jurisdiction. The system in Aspen is a lot different from what you could expect in a DUI or DWI case in Kansas or Missouri, but it does give a good overview of a DUI case from start to finish. Colorado DUI laws and Kansas DUI laws are different, and the court procedures are vastly different, but the scenario laid out in the article is similar to what one would find in a typical DUI charge in Kansas.

Monday, June 23, 2008
Your Papers (and Arm), Please

The New Mexico Business Journal has an article here about the booming sales for TruTouch Technologies and their infrared alcohol detector. The device requires a person to place their arms in a cradle and then shoots infrared light into the skin. Somehow, it is supposed to detect the level of alcohol in the person's bloodstream. The company thinks this technology will replace breath, blood and urine tests in the future, and will replace ignition interlock devices in vehicles. The State of New Mexico has purchased three of these machines and will be using them at roadblocks to see how they do.

I have previously blogged about this type of technology in the past. To my knowledge, neither this device nor the transdermal alcohol detecting devices are being used in Kansas DUI enforcement at this time and it is doubtful that they would be admissible now under the current Kansas DUI laws. However, it is coming. Many predict that eventually driving under the influence will be eliminated by such technology. Because these tests, or the transdermal tests, are "non-invasive" and the results are immediate, I think they will become standard on all vehicles within 10 years.

One note of interest from the article is that machine is referred to as an "intoxication-detecting device." Of course, if the machine does what it says it can do it is an "alcohol-detecting device", but is not capable of detecting whether the alcohol in the person's system has caused intoxication. This is part and parcel of the myth that alcohol effects everyone the same and that reaching the "legal limit" means one is intoxicated. One person can be intoxicated, depending on how you define the term, at a low level while another person is not intoxicated at a high level.

Thursday, May 8, 2008
The End of DUI?

Car manufacturers Nissan and Toyota are currently working on technology that could put an end to driving under the influence of alcohol. The technology can detect the presence of alcohol through a person's skin. These "transdermal alcohol sensors" in the steering wheel of a car measure the driver's alcohol content through the person's fingers. An awesome video regarding this and other technology can be seen here. I don't know what happens if the driver is wearing gloves because it is cold or how consumers are going to react when this technology fails and shuts his or her car down without reason, but I know that certain groups will be pushing to make this technology mandatory in all vehicles.

I have blogged about the technological advancements we can expect in Kansas DUI prevention and enforcement before (here). There are all sorts of inventions coming on to the market now that will allow law enforcement officers to gain information quickly, including flashlights that will take a driver's picture, make video and audio recordings and test the air around his or her mouth for alcohol without the driver knowing it. Facial and retinal scanning devices are already being used in many places.

Some are all for this use of technology and many are against it due to the loss of privacy and the propensity of this kind of sensitive equipment to fail or give a false positive. Like it or not, though, it is coming and it will effect the enforcement and litigation of DUI cases in the very near future.

Sunday, March 2, 2008
US Incarceration Rate is Highest Ever

According to this New York Times article, more than 1 in every 100 Americans is incarcerated in either a state prison or local jail. This is the highest rate of incarceration in US history and the highest rate of incarceration in the western world. For black men between 20 and 34, the rate of imprisonment is 1 in 10. This is pretty incredible and is consuming an enormous amount of resources. Are we safer than Canada, England, Germany, etc., which have much lower incarceration rates? I am not so sure.

Wednesday, September 5, 2007
Neighborhood Approach to DUI

One neighborhood in Colorado has taken on drunk driving using common sense. In a story reported here, a community in Bradburn, Colorado, has used suburban planning and neighborhood design to keep its residents safe and out of jail, as well as address other drawbacks to living in the suburbs. The problem that the neighborhood has solved is this: People are going to drink alcohol, and do it in groups, no matter what the law or obstacles. In the suburbs, this means someone has to drive to and from the drinking establishment/location. Thus, the driver is at risk for a DUI accusation.

To prevent its residents from needing to drive somewhere to drink and socialize, the neighborhood designed all homes to have a large front porch, close to the sidewalk, and put the garages in the back. This increases the numbers of people on their front porches hanging out. They have also eliminated any cul-de-sacs and built the neighborhood on a grid system, which increases the numbers of people passing by these front porches walking or driving. Most importantly, the neighborhood holds a party every Friday in the neighborhood park where residents can drink beer and wine while their children play. There are also a number of smaller parks and green spaces within the development where neighbors can socialize. So, each week, friends and neighbors can get together and drink and socialize without ever getting in a car.

Another extremely important element to reduce the need for driving, is that the neighborhood has obtained mixed use zoning permits which allow bars and restaurants to be built near the neighborhood. The Bradburn, Colorado neighbors have 3 bars and 15 restaurants within a short walking distance. Almost all suburban cities have strict zoning laws which keep residential areas separate from commercial areas. This forces people to drive to get to the places they want to go, including bars and restaurants. So, in this neighborhood, mixed use zoning eliminates this common suburban issue, as well as adds to the charm of the area.

The final piece of the puzzle is that the City of Denver, where ths neighborhood is located, is aggressively putting in light rail to connect the city with the suburbs. This is forward thinking for a lot of obvious reasons, including reducing the need to drive for social occasions.

I thought this neighborhood plan was interesting because it solves a lot of issues in a very easy way using good design. It encourages neighbors to know each other and to socialize, which not only makes for a nicer friendlier neighborhood, but reduces all crime. It recognizes a common human desire to drink alcohol and hang out with friends, yet discourages drinking an driving. Finally, it recognizes that the best places in America, and most of the rest of the world, have restaurants, bars, coffee shops, etc. inside or very close to residential areas. This makes for a vibrant, exciting and convenient neighborhood.

The Kansas City metro area could sure use this kind of commone sense development. We can't even get light rail built, much less taxis or other public transportation out in the 'burbs. If you live in a place like Overland Park or Leawood, Kansas, or Blue Springs, Missouri, you are going to have to drive to go out to eat or to a bar (that is why all the bars are required by law to have parking lots). If you get a Kansas DUI or Missouri DWI, you will likely lose your driving privileges and then you are really stuck in the suburbs. At least in Bradford, Colorado someone is trying to reduce these risks for suburban residents and provide a nicer neighborhood living experience.

Sunday, November 26, 2006
Recent News and Sci-Fi DUI

I haven't posted for quite awhile. This has probably been our law firm's busiest year ever. So, that leaves little time for things like blogging. Plenty has been happening in our law firm and in the DUI news world. Our law firm was chosen as and featured by SuperLawyers for 2006 and appeared on the inside cover of the SuperLawyers publication and their insert in Kansas City Magazine's November addition. We were also named as SuperLawyers last year. We have been winning cases and obtaining dismissals for our clients. The most important thing is that our clients are continuing to choose us for their legal needs and they are continuing to send their friends and family to see us.

There has been a lotof news lately about MADD's press release that they are recommending ignition interlock devices for every single person who gets a DUI. They are also championing new technology that claims it can sense the alcohol level in a person's blood by infrared technology that permeates the skin. MADD has previously suggested that all cars be required to be manufactured with this kind of technology, and that it be mandatory on all cars, regardless of who the driver is. While technology is likely to change the DUI landscape in the future (remember the Intoxilyzer 5000's in Kansas are from 1984 or so), we are a long way from any of it being perfect. Ignition interock devices are designed to shut cars down or prevent them from being started when there is any alcohol detected (usually .04 or less). So, they are designed to not just stop drunk driving, i.e. illegal driving, but also to prevent the legal, responsible and safe drinking and driving. The ignition interlock devices have had all kinds of problems, as well. They have prevented cars from starting when there was no alcohol present, and they have failed to detect alcohol when it was present. This happens on a regular basis. Think about how many items on your car don't work properly from time to time - power windows, CD players, gauges, door locks, etc. Ignition interlock devices need a lot of maintenance and calibrating.

The infra-red technology is unproven and a long way from being rolled out in any serious way. The idea is that steering wheels or arm rests would have the technology and would sense if the driver is under the influence just by the touch of the skin. The company also claims that police officers will have a mobile device that can quickly give them an accurate reading on the side of the road, so that all motorists can be checked at all traffic stops. Of course, the company won't release any details regarding the device and they are not in use anywhere, so it may just be science fiction.

The bottom line is that DUI is a personal responsibility issue. No amount of technology will be able to completely prevent it. It is entirely unreasonable to require everyone else to be required to pay for and maintain these devices in cars, or to be subject to these infra-red searches just to catch the few. Once again, common sense is being sacrificed at the altar of DUI. Don't be surprised when you next buy a car and see some extras on the sticker that aren't options.

Thursday, April 28, 2005
Launch
Well, this is the first of what I hope will be many posts to this blog to discuss the DUI laws and news in Kansas and Missouri. Please feel free to contact me directly with questions or comments. The email is lawyers@nortonhare.com.

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