Rights Infringements - 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 rights infringements connected to DUI or DWI law.

Monday, October 12, 2009
Drunk With Power

A police officer brought a DUI suspect to a Chicago-area hospital and requested that the hospital draw his blood to be tested for the presence of alcohol. The head nurse at the hospital said that the suspect would have to be admitted pursuant to hospital policy before the blood could be drawn. That sounds fairly normal to me. However, the officer decided that he didn't like this answer and proceeded to arrest the head nurse. She was handcuffed and stuffed in his car for 45 minutes until the situation could be resolved. You can read the story here. The handcuffs were too tight, causing her to need treatment at the hospital the following day (this happens a lot with handcuffs). I don't know what she was arrested for, probably "obstruction" of the officer for not violating her employer's policy, dropping everything else she was doing, and performing an immediate on-demand blood test. Naturally, she is now suing the cop.

While this case from Chicago sounds extreme, it was only recently that a similar situation came up in a Kansas DUI. Former Johnson County District Attorney Phill Kline was threatening to arrest hospital personnell for obstruction if they did not immediately comply with police demands for blood tests. I am not sure that there is a true legal basis for this. Hospitals are private entities, unassociated with the government and law enforcement, and many of them take patient care and patient privacy very seriously. They shouldn't be arrested for not dropping all of their other patients, many of whom are in the ER with serious unjuries and illnesses, and violating their own policies upon the demand of the police for immediate attention. Kansas DUI laws allow police to obtain blood tests in certain situations, but I do not believe that those laws mandate the assistance of hospitals.

All of the foregoing is why many states are skipping the hospitals altogether and sending the police officers to quickie phlebotomist classes. Once "trained" to take your blood, they can just strap you down at the police station and withdraw it themselves. The National Highway Transportation Safety Administration is conducting a two year study of these programs and then, no doubt, the will encourage it (i.e., require it) nationwide. You can read about that here. The laws will allow for forcibly taking the blood of people who refuse a breath test, and the blood will be taken by a law enforcement officer not a nurse or doctor. "Keep your laws off of my body!" Forget about it.

It won't be long until Kansas goes to forced blood draws. This is the nationwide trend, unfortunately. Instead of a hospital setting, folks will get bent over the hood of their car and will have their blood withdrawn by the police on the side of the road. Any Kansas DUI lawyer ought to already have experience with interpretting and attacking blood test results, but this skill will be more and more important in the future. We have already moved into the age of big brother, and this big brother has a syringe and all of the power.

Thursday, September 8, 2009
Out of Control (Again)

I have blogged before about just how far out of hand things have gotten in the zeal to pursue DUI cases. However, this story from Indiana might take the cake. A 53 year old man was stopped and arrested for suspicion of DUI. He submitted to a breath test but was under the legal limit. Yes, his breath was tested at under the legal limit but, as the story says, "the officer doubted the results". I am sorry but you've got to laugh. When the machine says a person is just barely over the legal limit, law enforcement and prosecutors will believe whatever the machine spits out as gospel and tell a jury that the machine can't be wrong. When it doesn't fit their preconceived idea, though, they "doubt" the result. But, that is not what is so completely bizzare, outrageous and sad about this story.

Unable to believe that he could be wrong, the officer ordered a blood draw from this citizen. Just to be doubly sure, he also ordered the FORCED CATHETERIZATION of this poor man. Wow! These additional tests confirmed that he was, in fact, not drunk. The officer has refused to apologize, but instead has charged the man with obstruction of justice because he was apparently not cooperative during the part of the encounter in which he was "shackled to a gurney and had a catheter inserted against his will".

Urine tests in Kansas DUI cases are fairly rare, although with the new push to try to find drivers who are driving under the influence of drugs (legal and illegal), they will become more frequent. So, I can't help but wonder how long it will be before we start seeing forced catheterizations in Kansas DUI cases. Why not? We have already sacrificed almost all of our constitutional rights upon the altar of DUI, anyway. Forced blood draws are increasingly popular in other states, and last year Kansas made it easier to forcibly extract blood from citizens who are involved in accidents. So, why not start strapping people down and forcibly removing their urine?

I can't help but be cynical. These kinds of stories of government abuse pop up alarmingly frequently and the citizenry doesn't seem to care. I mean this story would be scary if the man had actually been driving drunk. But the fact that a breath test had already demonstrated that he was under the legal limit (assuming, unlike the officer, that you trust these machines), and that he had already had his blood taken, makes this story particularly outrageous. Kansas DUI law allows the police officer that has arrested a DUI suspect to obtain a breath, blood or urine test from the person, or all three, multiple times, at his or her complete discretion. I certainly hope we don't get to the point of forced catheterizations in Kansas, but don't say you weren't warned.

Thursday, June 18, 2009
Drive-Through DUI

The sheriff's department in Tuscon Arizona had planned a DUI enforcement operation in which deputies would be stationed inside fast-food restaurants at night to observe customers placing their orders. Then, they would notify uniformed officers hiding outside the restaurant who could arrest the hungry people. What is possibly more absurd than this ridiculous idea is that the sheriff's department had a grant of $128,000.00 to pay for this malarkey! There are your tax dollars hard at work - staking out the Taco Bell. Here is the story from the local paper.

Of course, the undercover officer would have had to have jumped to the conclusion of intoxication based on the way a person talked or appeared while ordering their food. There have been studies done to determine whether a police officer can accurately determine whether a person is under the influence or not based upon the odor of alcohol (they couldn't) or their appearance (they couldn't). In fact, some of the previously considered "classic symptoms" of intoxication have now been determined by the National Highway Transportation Administration to not be "clues" of impairment, after all (including bloodshot eyes and a flushed face). So, this was all very suspect anyway. Fortunately, the restaurants decided they weren't that interested in their paying customers being arrested at their place of business based on how they looked or talked.

The staking out of fast food places by undercover officers is not so far-fetched. Right here in Johnson County officers have been known to dress up undercover and go to high school activities to try to learn about teenage parties where there may be alcohol present as part of multi-jurisdictional Kansas M.I.P or M.I.C. (minor in possession/consumption) laws enforcement campaigns. I would imagine the police departments get large grants for these efforts, as well.

So, be on your best behavior next time you get the late-night munchies. The government may be watching.

Thursday, April 16, 2009
Vampires?

Here is a story appropriate for tax day, April 15. A county in Missouri is planning a "No Refusal" checkpoint this weekend. Here is a story. A "No Refusal" checklane means that if you get stopped in the checklane and then refuse to take the goverment's breath test, they will hold you down and forcefully take your blood from you. So, there will be no refusals. The way they do this is by having judges on hand to authorize search warrants on the spot. Kansas DUI law does not allow for forced blood draws (yet) unless someone has been in a car accident resulting in death or a serious injury. Missouri DUI law, though, does allow forced blood draws if a judge authorizes it. So, law enforcement has co-opted some judges to assist them in making this quick and easy on the side of the road. This is something that has been happening in other states for the last couple of years.

This is interesting since, as I have blogged about ad nauseum, checklanes are about the least effective means of finding drunk drivers. Hundreds of people are stopped, and there may be a handful of people who get arrested (of course, some of those arrested will later be determined to be innocent). A DUI checklane in Kansas City, MO last weekend stopped 321 cars and netted 7 arrests for DUI. That is a success rate of about 2% which is about average. The other 98% of the public who are not breaking the law will now not only be stopped by the government without cause, but be confronted there by judges with pens at the ready to authorize the police to bend you over the car hood and pull your blood. It could be a TV show, "When Governments Attack!" Seriously, this makes me understand a lot of "tea parties" that were happening today protesting"big government". This is our tax dollars a work.

Thursday, July 10, 2008
Field "Sobriety" Tests Are Ridiculous

Here is another article that shows why. This driver was "weaving" and failed "field sobriety tests", as is very common in Kansas DUI cases. Then, he blew .000 and took and passed a urine test. Oops! It still took a month to get the case dropped. The driver was terrified and is now, justifiably, angry. Please, read the article below:

BRADENTON, FLORIDA — If there is a lucky four-digit lottery number in DUI cases, it is this: a 0.000 on the blood-alcohol breath test.

Gary Shuchat hit quadruple zeros, but that was not enough to win his freedom after a traffic stop in May.

A Manatee County sheriff’s deputy said Shuchat failed field sobriety tests, even though Shuchat showed no obvious signs of impairment. He was not slurring words. His eyes were fine. There was no odor of alcohol.

Shuchat said the deputy thought he was on cocaine.

Authorities got a urine sample from Shuchat, which came back clean a few weeks ago. No drugs. No alcohol. A state prosecutor dropped the case.

“Actual innocence,” said Shuchat’s attorney, Mark Lipinski, who called the 0.000 on the breath test a rarity in drunken-driving cases.Florida drivers are considered intoxicated at 0.08 and above.

Shuchat, 54, an executive at a lumber company in Canada, will not let his arrest slide as a mere inconvenience or a story to tell about American police. He wants to sue the Sheriff’s Office, calling his arrest in Bradenton a terrifying experience. “This was the most degrading and dehumanizing thing I have ever been through,” Shuchat said. “This was crazy. I was not drunk.”

Last year, out of the 1,008 breath tests given by Manatee deputies, 23 people had results of 0.000.

DUI cases are inherently problematic because each driver is different. Some faces are naturally red. Some speech is naturally slurred.

A bigger person may have a harder time doing field-sobriety tests, such as walking a straight line, than a person who is slender.

In the legal defense community, field sobriety tests are dubbed “abnormal” exercises used to test “normal” abilities.

Authorities who are challenged in lawsuits routinely say that police act in good faith, that a stop and a detention were performed within the scope of the officer’s duties.

Deputies ask drivers about any physical problems that may prevent them from completing field-sobriety exercises. Shuchat weighs more than 250 pounds and is 6 feet, 1 inch tall.He said he did not have any physical or medical ailments.

If a person is arrested after field-sobriety tests, deputies are not going to free the person based on 0.000 on the breath test, Capt. William Dixon of the Manatee County Sheriff’s Office said. The driver is detained, and presumed impaired, before the breath test is given.

Deputies have discretion in using a portable breath test in cases in which the deputy thinks the person may be impaired, but not enough to support a criminal DUI case. The driver will not be arrested. The results are not allowed in court. The portable breath test is meant to compel the person to find another way home.

It was not immediately known why Deputy Lee Harrington did not use a portable breath test on Shuchat. Whether Harrington had one that night, or could not get one, has not been determined.

Dixon said it was in Harrington’s discretion to arrest Shuchat on suspicion of DUI.

Another deputy, Michael Lesselroth, said Shuchat was weaving in a lane in the 2300 block of 53rd Avenue West at about 11 p.m. the night he was arrested.

“How do you weave in a lane? I’ve never heard of that before,” Shuchat said in an interview.
Lesselroth said he swerved in his patrol car to avoid a collision with Shuchat, who was driving a rented Dodge Durango. Shuchat, the deputy said, “swayed” in the driver’s seat of his car.

The deputy called Harrington to conduct a DUI examination.

Shuchat said he had a glass of wine during dinner at a Sarasota steakhouse, a statement that Harrington reported in his write-up.

Harrington asked Shuchat to walk on a piece of tape, heel to toe. Shuchat had trouble with his balance and stepped off the line, according to a report. Shuchat was told to use his eyes to follow a light in front of him. Deputies said he moved his head to track the light.

Shuchat was arrested. At a sheriff’s station, he breath came came up 0.000. Harrington thought it was a mistake, Shuchat recalled, and told him to blow harder. “I’m blowing my brains out,” Shuchat said. Shuchat again blew 0.000.

Shuchat told Harrington to free him. But the deputy said he could not leave. Shuchat was ordered to give urine for analysis.

Authorities say a person who is under the influence of a drug and who has not been drinking will register 0.000 on the breath test.

Shuchat spent several hours in jail before he posted $500 bail. A prosecutor last month said there was insufficient evidence against Shuchat.

“Charlie Chan used to say, ‘Never hunt rabbit with a dead dog,’” Lipinski said. “That’s what they are doing here: a DUI case with triple zeros and clean urine.”

Monday, June 23, 2008
Over the Top Shock Tactics

Police officers visited 20 different classes at a suburban San Diego high school a couple of weeks ago and told each class of kids that students from their class had been killed in a drunk driving accident. Naturally, the kids became hysterical. They began texting each other, kids in other schools, and parents. There were numerous meltdowns, breakdowns and freak outs, which should have been expected. Hours later, the kids were told that the whole thing had been a hoax set up by the police, school officials, and the kids who had been selected to "die." The point was to scare the kids into not drinking and driving. Once they were told they had been lied to, the students became enraged. There is an article about this shocking incident here. Maybe next year they can pull each student out one by one and tell them both of their parents have been killed by crackheads to scare them away from drugs.

I understand that the adults, who should have known better, had the best of intentions, but this was extremely stupid and is likely to backfire. Kids don't like to have their emotions toyed with and to be tricked to be taught lessons. My opinion is that they are less likely to take this issue seriously in the future because of this. Also, the drama generated by these fake deaths may actually be appealing to some teenagers and make them less likely to fear their own real death. This exercise lacked all common sense and is another example of the forest being lost for the trees when it comes to public relations regarding DUI.

Thursday, April 24, 2008
Big Brother Comes to KC

The city council of Kansas City, Missouri has entered into a contract with an Arizona company to have red light cameras installed at 12 intersections in KCMO. You can bet that when the money from those starts rolling in they will install more. The story in the Kansas City Star is here.

I would expect that other cities in both Missouri and Kansas will follow suit, especially once those cities see the profit margins on KC's cameras. Even though these cameras are intrusive, fail to prove who is the true perpetrator of the red light violation, are capable of being wrong and cannot be cross-examined, I expect that the general populace will just shrug and start paying the fines. We are growing more and more comfortable with big government, and growing more and more comfortable sacrificing constitutional principles and individual rights at the altar of a false sense of "safety" that we have all but given up on a democracy by and for the people in favor of a top-down government to keep us all in line. At least the cameras will free up some police officers to go around and enforce the new smoking ban in Kansas City! Maybe now they will also have then manpower to actually send an officer to your house to make a report when you've been the victim of a property crime (they currently don't do that in KCMO).

Wednesday, March 12, 2008
We See What We Want to See

This disturbing story from Tampa , Florida is typical of the hysteria surrounding DUI cases these days. A man was driving himself to the walk-in doctor's clinic because he was so ill with pneumonia. On the way there he was stopped by law enforcement. They apparently assumed he was drunk, even though he explained that he was sick and needed medical attention. So, they gave him a breath test and he blew .000. That is, he had no alcohol in his system at all. Did they release him to get to the doctor with their profound apologies? No, he was arrested anyway and booked into the county jail. He sat there until 2:00 a.m. when his family could finally bond him out. He went immediately to the hospital, where he remains today very sick with pneumonia. The story doesn't say whether charges will be dropped or the case will be prosecuted.

This case reminds me of another case I blogged about before in which a man was pulled over for striking a curb. He could not successfully complete the so-called "field sobriety tests" becuase his body was ravaged from 20 years in the construction industry and was arrested. He blew a .000. So, law enforcement assumed he must be under the influence of drugs. His blood was drawn and it came back negative for any drugs. Yet, the prosecutor insisted on prosecuting the case on the faith that there must have been some kind of intoxication going on. Of course, the guy eventually got the case dismissed, but only after he spent thousands on legal fees.

We see what we want to see. If you want to see a DUI, you will see a DUI, regardless of the reality right in front of your eyes. In the frenzy to catch drunk drivers, many people have put on the blinders and are just operating on their hunches and desires, and completely innocent people are getting swept up. Even when the tests come back negative or under the legal limit, Kansas DUI prosecutions march on. I have had these kinds of cases in my own practice on a regular basis. The foregoing 2 examples are not isolated incidents. Somehow common sense needs to be injected into the process again. Precious resources that could be used to catch real criminals are being spent on cases like these where there is no evidence. The answer, of course, is to take the money out of the DUI equation and you would see a lot less of this willful blindness to the obvious.

Friday, November 17, 2007
2 Frightening DUI Stories on the Same Day

Browsing the Kansas City Crime Scene Blog, as I do almost everyday, I saw 2 DUI stories on the same day that are all too common. The first story concerns a guy who was passed out in his car at about 4 p.m. When the officers aroused him, he was lethargic and appeared to be drunk. The officers told him to get out but he didn't so they zapped him with a taser. It turns out he was having a diabetic reaction. They arrested the guy and took him to the station where he blew .000 on the breath testing machine. He still spent time in jail and had to post a $1,000.00 bond. Not only that, they still have not dropped the charges! This, despite the obvious evidence that he is just a diabetic and was suffering from a medical condition. This happens all the time. The effects of a hypoglycemic reaction closely mimic those of intoxication, including a "fruity" odor to the breath which smells like alcohol. What is scary is that this guy is still charged, despite the evidence being that he had no alcohol in his system!

The second story concerns a disabled man who was given a DUI while rolling down the road in his scooter, which is actually a wheelchair. He has no use of his legs due to cerebral palsy so he uses the wheelchair to get around. He had a 12pack in his basket and blew a .125. So, I guess this guy is not to enjoy any beers out side of his house for fear of getting a DUI. Or, maybe he could get a DUI even in his house if he moves his wheelchair from one side of the room to the other. He is facing 3 years in prison for this offense. Recently, there have been a lot of stories about people getting DUI's on bicycles, horses, golf carts, riding lawnmowers and even a zamboni. They are kind of funny, but when you think of it they are kind of scary, too. I don't know what good giving a disabled person a DUI in his wheelchair is going to do for the community. I am not sure exactly who or what the police are protecting by arresting this guy.

Sometimes it seems that in the panic to prevent any drinking and driving, whatsoever, we have sacrificed common sense on the altar of DUI. We see Kansas DUI cases at our law firm that parrallel these two cases from time to time. The diabetic situation is quite common, actually. So, when we laugh at these cases remember we are laughing at ourselves. DUI cases in Kansas can be just as absurd and the citizens certainly don't seem to mind living in a DUI police state - until it happens to someone in their family.

Wednesday, September 12, 2007
R.I.P. Richard Jewell

Admit it. You probably thought Richard Jewell was the Centennial Park assassin after the FBI declared him a key suspectand psychologists went on the air to describe how hefit the profile of a “lone bomber”. I know I fell for it. Mr. Jewell protested the multiple searches of his homeand complained that he was set upon “like piranha ona bleeding cow.” It turned out that Richard Jewell was not only innocent, but he was a genuine American hero who saved hundreds of lives. He died a few days ago.

The Innocence Project (http://www.innocenceproject.org/)reports that since 1991 there have been 207 post-conviction DNA exonerations in the United States –individuals who were wrongfully convicted basedon “eyewitness misidentification, corrupt scientists, overzealous prosecutors and inept defense counsel.” Fifteen of these people were sentenced to death.
Our system of justice presumes innocence unless guilt is proven beyond a reasonable doubt. Now you know why.

Kansas DUI cases are not immune from the same frailties that caused Richard Jewell to be wrongfully accused of being a domestic terrorist or Brandon Mayfield, a lawyer from Oregon, to be wrongfully accused and imprisoned for 3 weeks as the bomber in Madrid, Spain responsible for 191 deaths (Remember him: they supposedly found his fingerprints on the bag of detonators -oops!). Just recently I discovered that a law enforcement agency in another county was fraudulently creating the quality control documents the the Kansas Department of Health and Environment requires be turned over every month in order to maintain certification of breath testing equipment, in this case an Intoxilyzer 5000. The machine failed to demonstrate on more than one occasion that it was calibrated correctly. Instead of taking the machine out of service and getting it fixed, they just made up the numbers and allowed people to be convicted and diverted for DUI charges based on incompetent breath test results. Luckily my client was not one of those unfortunate people.

While cases of wrongful accusations and convictions may be the exception rather than the rule, it is important to remember that it can happen. In fact, it happens far too often. When dramatic mistakes like those made in the Richard Jewell case can be made in cases involving the best law enforcement agents in our country, in one of the biggest investigations ever, it is not too much of a stretch to realize that they can be made in the little Kansas DUI cases that no one ever hears about.

Thank you to San Francisco attorney Paul Burglin for the inspiration for this blog entry.
http://www.burglin.com/

Thursday, January 25, 2007
Failure to Maintain a Single Lane

A new case in Kansas, State v. Ross, addresses a situation seen very frequently in Kansas DUI cases. Generally, all a police officer needs is a simple traffic infraction in order to pull a driver over. Late at night, officers will look for any little violation that they can find to justify a stop so that they can also smell the driver and see if they can get a DUI. I see a lot of people who were stopped for things they would never get pulled over for during the day, like not having a light above their license plate, not using a turn signal and, very often, "Failure to Maintain a Single Lane".

There really is no such thing as "Failure to Maintain a Single Lane". The statute, KSA 8-1522, is actually called "Driving on Roadways Laned for Traffic". Anyway, it is often cited as FTMSL. An officer will pull a driver over (especially anytime after midnight) if the driver's tires cross a lane divider or the edge line. Police officers would sometimes pull their cruisers right up onto the tail of a driver they wanted to stop an tailgate them, even swerving back and forth a little. This induces what is known as "Black and White Fever", wherein the driver, nervous becuase there is a police officer right on his or her tail, spends more time looking in the rearview mirror at what is going on than looking at the road before him or her. Naturally, they will leave their lane briefly during this time. Often at trial, I can establish that the driver's tire crossed the line only by an inch or two, or even a tire width, and only for a second. However, this was previously considered FTMSL, and was all that was necessary for a stop.

The Ross case says that the statute does not require that a driver never leave his or her lane. The law only requires that a driver maintain his or her lane as "nearly as practicable" and only leave the lane if it can be done safely. I have argued this exact point numerous times before, including to the same Court of Appeals that handed down the Ross case, but to little avail. Fortunately, they have now recognized the plain language of the law, and the common sense reality that it is not necessary that a vehicle rigidly stay in the lane, as long as any brief movement out of the lane is not unsafe. As the Court recognizes, cars do not run on rails.

I would be willing to bet that, all of a sudden, there will not be any more car stops for FTMSL in Kansas DUI cases and we will see an upsurge in other justifications for making a stop. These stops were almost always a pretext for a Kansas DUI investigation anyway and sometimes were brought on by the deliberate tailgating of the officer. Thanks to this new case, they'll have to come up with something else now in order to justify pulling someone over.

Saturday, January 13, 2007
Hypocrisy

This article from Maryland is about a state legislator who was pulled over for a traffic infraction, smelled like alcohol and took a preliminary breath test that registered a .140, nearly twice the legal limit. After he flashed his legislative ID, the officer decided not to make an arrest and arranged a ride home for him. More interesting is that MADD is completely supporting the decision not to arrest. Of course, MADD is the organization that is normally pushing stricter law enforecement and lower legal limits all over the country. So, what gives?

The reason that the officer let the legislator go and that MADD is covering for the cop and the legislator is MONEY. The police and MADD both depend of legislators to earmark funds for them. So, when a legislator turns up drunk behind the wheel, he gets a ride home. Believe me, if anyone else reeked of alcohol and blew over the legal limit on a PBT they would be getting a ride to jail with handcuffs. Of course, the police and MADD also depend on the citizens they arrest for DUI for money, and they get a lot of it everytime someone is diverted or convicted of DUI. That is why the police always arrest anyone they suspect of drinking and driving. In fact, I have represented many people who blew UNDER the legal limit. They still got arrested and charged with a DUI. The Maryland story is one of the few times that the hypocrisy of MADD gets the light of day shone on it.

Tuesday, Septemeber 19, 2006
Constitution Does Not Apply to License Hearing

A recent decision by the Kansas Court of Appeals, not final yet, holds that the it is irrelevant whether the police had any reason to stop you when it comes to the hearing about your driver's license. The case can be found at
http://www.kscourts.org/kscases/ctapp/2006/20060915/94033.htm

When a driver is accused of failing a breath or blood test, or refusing one, there are 2 different cases that are initiated. One is the criminal case, in which the person is charged with a DUI, the second is a case against the driver's license.

Normally, the Fourth Amendment to the US Constitution mandates that all US citizens have the right to be free from unreasonable seizures and searches. When a car is stopped the driver is seized. So, police have to have reasonable suspicion that a crime has occurred or is occurring before they can stop you. That is the American way. Or, it was. Now there is another DUI exception to the Constitution. According to this new case, the police do not need to have had a reason to stop your car. They can stop you just for the fun of it, or because you are Black, or a Muslim, or a teenager, or a woman, or for any other reason that they like and it does not make a difference. You cannot raise the fact that you did not commit any traffic offense that would warrant a stop of your car. Whether your seizure was lawful and Constitutional is no longer relevant.

In my opinion it is a sad day when a court of law decrees that the United States Constitution is not relevant to a judicial proceeding. This is another fundamental right that has been sacrificed upon the altar of DUI. Perhaps the Kansas Supreme Court will reverse this, but I doubt it. My hope is that one day the people of Kansas, and the USA, will say "enough" to the continued erosion of the freedoms that our country fought so hard to establish and maintain. Until then it appears that the Constitution will continue to get thrown out with the DUI bathwater.

Thursday, August 31, 2006
GHB, Date Rape and DUI

A friend sent me the following article about a young lady that went out and had one drink. A few hours later she was charged with manslaughter for killing another person with her vehicle. She received a sentence of 40 years in prison. The article is at: http://www.salon.com/mwt/feature/2006/08/30/criminal/index.html

This is a frightening story. One of the reasons I find it so shocking is that I have had handful clients in the past few years come to me charged with DUI when they swear they only had one or two drinks, then completely blacked out and woke up in their car somewhere else, sometimes after being involved in an accident. This is not just something that happens to other people. There are frequent instances of dosings with the date rape drugs of GHB and Rohypnol in Kansas City bars and clubs. This is also not just something that happens to women. Two of these clients were men and the aim of the perpetrator was apparently just to make someone else sick for the "fun of it".

These victims had a drink or two and started to feel sick. A couple of them remember leaving because they didn't feel well. Then, the symptoms fully hit them as they were driving and they pulled over or wrecked. The others don't remember leaving or how they got to where they were found.

Of course, when the police show up the person appears very intoxicated. Unfortunately, in all of these situations the clients either refused a breath test or were too incoherent to consent to a test. I firmly believe that a breath test would have shown there to be little to no alcohol in the system. GHB can only be found in the blood for a few hours. There is a hair follicle test that can be done, but it has to be done within a month.

Without confirmation that there was something on board other than alcohol, the person is on the hook for a DUI. In fact, the law in Kansas is not exactly clear whether it is still illegal to be driving a car when a drug was involuntarily or unknowingly administered. DUI is an "absolute liability" offense and no intent to drive while under the influence of alcohol or a drug need be shown by the prosecutor. I still believe that a court would not convict a person for a Kansas DUI if a date rape drug was unknowingly ingested, but I would not want to bet on it.

The bottom line is that every person who goes to bars, clubs, parties, or other place where liquid refreshments are served runs the risk that his or her drink will get drugged. It is a very bad situation if that happens. Watch your drink being made, don't accept drinks from strangers, never let your drink out of your sight or turn your back to a drink. These odorless, colorless date rape drugs can be slipped in easily and quickly. You must responsible for what goes in your body and in what quantities. Unfortunately, the world is full of bad people who count on the trust of others. You could end up with a DUI or worse.

Friday, July 8, 2005
Out of Control

If you don't think things in the DUI world area little out f control, check out this story in the Kansas City alternative weekly "The Pitch". It is the story of a gentleman whose body has been beaten up by doing hard work and who is missing some teeth so he talks a little differently. He gets stopped for a traffic infraction and because he can't perform physical tests and his speech sounds slurred, he gets arrested for a DUI. He takes a breath test and blows .000, i.e., no alcohol. Still suspicious, the officer makes him take a urine test. It is negative for every drug in the book. Yet, the prosecutor is going forward with a DUI case against this man and it is costing him a lot of money to defend himself. All because hard work has taken a toll on his body and he lost his teeth. This is out of control.

Thursday, May 12, 2005
DUI on a Horse? Of Course!

Associated Press
May. 10, 2005 05:00 PM
SOMERSET, Ky. - A man has been charged with drunken driving - for riding a horse while allegedly intoxicated. Millard Greg Dwyer, 42, was arrested Sunday night after he rode his horse onto a downtown street in front of an off-duty state trooper, Somerset Police Lt. Allan Coomer said. Trooper Martin Wesley told local officers that Dwyer looked like he was about to fall off the horse. Coomer said Dwyer admitted to being drunk and told officers that he had ridden the horse from Fishing Creek, which was about 5 miles away.Dwyer told officers that he had consumed about a 12-pack, Coomer said. Dwyer failed sobriety tests, Coomer said, and was charged with operating a vehicle other than a motor vehicle under the influence of intoxicants.A breath test showed Dwyer's alcohol level at .244, more than three times the limit, Coomer said.Dwyer was released from the Pulaski County Dentention Center Monday, jail officials said. He faces a fine of between $20-$100, plus court costs, Coomer said.Coomer said the arrest was "very unusual," but Somerset police have arrested others for similar violations, such as riding a bicycle and a lawn mower under the influence.

Believe it or not, this is not an isolated event. There have been several other DUI cases around the nation recently that involve people riding horses, lawnmowers, golf carts or bicycles under the influence. In Kansas, you have to be driving a “motor vehicle” to be charged under the state statute. However, cities are free to make up their own laws that will apply to their city. The City of Wichita has a law against riding a bicycle under the influence of alcohol. The penalties are exactly the same as for driving a car under the influence. See, CITY OF WICHITA v. HACKETT, 275 Kan. 848 (2003).

The laws against a person driving a car while drunk are good laws. Being intoxicated while behind the wheel of a car puts the drunk driver, his or her passengers and everyone else on the road in danger because cars are heavy hunks of metal that can be moved at fast speeds. I completely understand why it is prohibited (how impairment is determined or how the law is enforced are different subjects). But, I cannot understand why we need laws that prohibit people from riding horses or bicycles while intoxicated. While it is possible, remotely, that a drunken bicyclist could create a hazard on the road, you cannot cause much damage with a bicycle, except maybe to yourself. Bicycling certainly does not pose the risk to the motoring public that driving a car does. These laws apparently exist to protect people from their own stupidity, which is a questionable role for government to play.

I would prefer that police officers spend their time preventing crime and enforcing laws that protect people from dangerous individuals and activities. I would also rather that people in Wichita, or other cities, ride their bikes to and from the bars instead of drive cars. If you make the penalties the same, people have little incentive to choose the lesser of the two evils. Public policy should dictate that riding a bike under the influence is nowhere nearly as dangerous as driving a car in that condition and, as such, it should be legal or the penalties should reflect the greatly minimized danger to the public that it represents. For now, though, you had better think twice before you mount your horse, bicycle or lawnmower after you’ve had something to drink.

Please fill out our electronic form and submit it to Norton Hare L.L.C. for a free evaluation from one of our attorneys regarding your defense in a Kansas DUI or a Missouri DWI case.

If you have scheduled a consultation with Norton Hare, LLC, please download our client questionnaire and take a moment to fill it out as completely as you can. By completing the questionnaire prior to the meeting and bringing it with you to our offices, you will spend less time in our waiting room and more time in consultation with one of our attorneys.

top of page