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 an index of topics addressed by Mr. Norton, followed by several of his most recent submissions.

Topical Index

Wednesday, March 10, 2010
Washington, DC Intoxylizers Are Inaccurate

A recent story from the Washington Post relates that the DC Police Department is acknowledging that 9 out of 10 of their breath testing machines are inaccurate and that they are reviewing all DUI cases from October of 2008 through February of 2010. This will likely affect hundreds of DUI's (I would bet that is a low estimate). Many of the people tested by these clearly faulty machines have already pled guilty or taken the equivalent of diversion. Fortunately, somebody hired an attorney that actually pulled the paperwork on these machines and dug into whether they were being properly maintained and functioning properly. The machines in question were Intoxilyzers made by the CMI corporation, the same company that makes the Intoxilyzers used in Kansas DUI cases. The story doesn't say what the exact nature of the problem is, but I will bet there is a lot more to this issue than the police are currently letting on. The problems with breath test machines can range from the falsification of records and results to the inherent inaccuracy of infrared spectroscopy, partition ratios and machine engineering.

Another recent story, this one from Denver, has the police admitting that the refrigerator that they stored evidence in, including blood and urine samples, malfunctioned and may have ruined all of that evidence. The police were reviewing whether their budget would allow for a temperature monitor to try to avoid the problem of the fridge thermostat malfunctioning. How much could a thermometer cost? Can't you go to Radio Shack and get one for $10.00? This is science, people. At a minimum, someone should buy a thermometer, put it in the fridge, and check it periodically to make sure the temperature is constant. Get a logbook and write down the temperature every few days. I have blogged before about the problems with law enforcement labs. Fraud and incompetence are, unfortunately, fairly common. Unrefrigeraterated blood can actually "ferment" alcohol as the sugars in the blood decompose and give you a false high on a blood test.

What all of this means is that you cannot just trust the results of a breath, blood or urine test as reported by law enforcement. The police can make mistakes, have faulty machines or refrigerators, or be relying on a lab that has some problems. You have to hire the best Kansas or Missouri DUI attorney that you can, and that person has to flip over every rock, dig through the paperwork and ask questions.

Wednesday, January 27, 2010
How to Convince People to Drive Drunk

I was sent the article below from a friend. I don't know what LewRockwell.com is all about or who the author Mark Crovelli is, but the point of the tongue-in-cheek essay is well-made.

How To Convince Men To Drive Drunk
by Mark R. Crovelli

What I am about to reveal to you lawmakers of the world are some fool-proof instructions for drafting and enacting laws that will transform men who are disinclined to drive while intoxicated into dangerous drunk drivers. I am not sure whether you will find these instructions useful in your professional lives, but I am fairly certain that you will find this information edifying nonetheless.

The overall strategy that you ought to pursue if you want to convince men to drive drunk is to make sure that they have no (or few) viable options open to them besides getting behind the wheel when they’re drunk. More specifically, what you should aim at accomplishing is to increase the costs of the alternatives to drunk driving, which will concomitantly decrease the relative costs associated with drunk driving. While this might appear initially to be a difficult feat to accomplish, it is actually quite frequently and easily achieved in practice.

Let’s look at a classic example of how to draft a law that will convince men to drive drunk. In fact, this is one of the best possible ways to make sure that there are more drunk drivers on the road than there otherwise would be. The general objective in this case is to make sure that all men who are thinking about sleeping off their intoxication in their vehicles choose to drive home instead. In order to achieve this result, all you have to do is draft and enact laws that punish sleeping in one’s car while intoxicated in exactly the same way that you punish drunk drivers. What you will have achieved by enacting such a law is to have increased the costs associated with choosing not to drive while intoxicated, while having simultaneously decreased the relative costs associated with driving drunk. When faced with the choice of sleeping in a truck cab versus his own bed a man is likely to opt for the latter choice and drive home, when the costs associated with either option are the same. After all, why not choose to drive home and sleep in your own bed, when you could get a DUI anyway just by sleeping in your car? If you are looking for laws to enact that will convince men to drive drunk, this should be one of the first options you consider.
Another effective method for increasing the number of dangerous drunk drivers on the road is to enact laws that will lead the population to be more intoxicated on a regular basis than they otherwise would be. If you can convince men to drink a pint of whiskey instead of just drinking a few beers, for example, you will of course have drunker and more dangerous drivers on the road. Don’t for a minute think that this goal is impossibly out of reach for you far-seeing lawmakers. One of the most effective ways to accomplish this feat is to dramatically increase the tax on beer (and, hence, its overall price), which decreases the relative price of hard liquor. Since it is much more difficult for drinkers to ascertain how intoxicated they are when drinking, say, shots of Jack Daniels compared to drinking Coors Light, you can be assured that there will be many more stupendously drunk drivers on the road than there would have been without this tax. Feel free to improvise here. If you can use your taxing power in other ways to ensure that people will drink vodka, gin, and whiskey (or, better yet, Bacardi 151) instead of drinking their preferred light beer, you will have accomplished the same goal of creating more dangerous drunk drivers on the road. For more information on how to use taxes and prohibition to make Americans more drunk, I recommend reading Mark Thornton’s excellent book The Economics of Prohibition [PDF].

You can also cause people to drink more than they otherwise would by constantly tightening the legal definition of drunkenness. This option is a bit more subtle, but is nonetheless effective. In order to see how to employ this strategy, consider this example. If the definition of drunkenness is legally established at, say, .15%, men are in a position to be able to drink a few beers, have a bit of fun, and still stay well below the legal limit. They also have an incentive to slow down before they approach that limit and risk getting a DUI. If you tighten the definition of drunkenness, however, to, say, .08% or even .02%, men can only consume one or two drinks before they are already over the legal limit. And, once they are over the limit, they have no incentive whatsoever to slow down. Since they’re already over the limit with two drinks, and can already get a DUI if stopped, why not keep drinking? There is certainly no legal incentive for them to slow down after they’ve passed this ridiculous definition of drunkenness.

The same holds true should you choose to treat all people with alcohol in their veins as "drunk," no matter how much they have consumed over the legal limit. If you punish a man just as severely with a BAC of.09% as you do men with BAC’s of .25%, what possible reason could a man have to slow down his drinking after he’s over the limit? Since he will receive the same punishment whether he drinks five cocktails or fifteen, he is not encouraged by the law even in the slightest bit to slow down. If you are looking for more elegant and subtle ways to increase the number of truly dangerous drunk drivers, this might be the option for you.

Yet another method for increasing drunk driving that I would like to share with you concerns alternative transportation. If you can manage to drastically reduce the amount of safe, alternative transportation in your jurisdiction, you will go a long way toward making sure there are more drunk drivers on the road. If you can foist a government-backed cartel in the taxi and limousine trade in your jurisdiction, for example, you will be effectively depriving drunk people of a cheap and safe alternative to driving when they are drunk. And, without having the option of these cheap and safe forms of transportation, they will choose to drive drunk more frequently than they otherwise would. A more effective method for creating more drunk drivers would be hard to find. This option has the added benefit that the people thus deprived of cheap and safe transportation won’t even know that it is responsible for increases in the incidence of drunk driving!

Finally, it is critically important for you lawmakers to avoid legalizing drunk driving at all costs, if you want to make sure that there are both more drunk drivers and more dangerous drunk drivers on the road. If you follow these simple prescriptions, in no time you will find a veritable epidemic of drunk driving in your jurisdiction emerging, and the booty from drunk driving arrests will start to flow in.

Just remember not to crack a smile when you hold press conferences in your district piously proclaiming that you are doing everything in your power to reduce drunk driving.
April 14, 2009

Again, I don't know much about theLewRockwell.com, but I gather that it is a fairly Libertarian website. The political views of that website and the author of this essay don't necessarily reflect the views of our firm or its individual lawyers, but this particular essay tracks with issues I have raised before in this blog numerous times.

Mark R. Crovelli writes from Denver, Colorado.
Copyright © 2009 by LewRockwell.com.
Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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.

Tuesday, December 22, 2009
Drive, Walk or Take a Cab?

Let's face it, people are going to go out and drink alcohol. If one does, at least in this area of the country, your transportation choices primarily are limited to driving, walking or maybe taking a cab. There is nothing illegal, whatsoever, about drinking and then driving. It is only illegal to drive if you have been rendered incapable of safely doing so by alcohol, or your breath alcohol content is over .08. However, recent news stories have reinforced the notion that some people have that it is better to "chance it" and drive when you are actually drunk, than to opt for walking or calling for a cab.

The New York Times has an editorial from the Freakonomics people about all of the response that they have received to the section in their recent book, SuperFreakonomics, regarding drunk driving. According to Freakonomics, it may be more dangerous to walk drunk than to drive drunk. By their statistics, there is one fatality for every 1.6 million miles driven drunk in America. The numbers for miles walked is higher. The article also crunches the numbers to demonstrate that it may be a toss up between driving drunk and taking a cab, as far as the costs go. Don't shoot the messenger. The authors are the highly respected, best-selling economists and journalists, not me. But, it does make you think.

Of course, these days, driving your vehicle after drinking could get you caught up in a checklane like this one, where drivers were strapped to chairs on the side of the road and had their blood taken from them. These photos are very creepy if you ask me, and every American should consider them. One lesson to take away is if you don't want to be subjected to medical procedures while trying to get home, you are back to taking a cab or walking, notwithstanding the statistical warnings of Freakonomics.

Taking a cab would certainly seem like the most sensible option to avoid driving drunk (assuming you can get a cab - I don't think there are any such services in most parts of Kansas, including Johnson County). However, consider this story from Houston of a world gone mad: A father and daughter (22 year old wife and mother) went out on Thanksgiving weekend for some holiday cheer and to watch a game at a sports bar. Because they knew they would be drinking and wanted to be responsible, they took a cab there. When it came time to go home, they went outside to wait for their cab to arrive. While waiting in the parking lot for a ride, both father and daughter were arrested for public intoxication. They were doing no more than standing outside of the establishment waiting for their safe and sober ride home.

Believe it or not, most cities in Johnson County, Kansas, have ordinances against walking while intoxicated (called "Pedestrian Under the Influence) or public intoxication. So, the father and daughter mentioned above couldn't have driven, walked or taken a cab in our state. Enforcement of such laws against people who are walking home from drinking or waiting for a cab only encourages people to go ahead and take their chances behind the wheel. A ticket for public intoxication is certainly better than a DUI, but it is unfortunate that anyone would get arrested when they are making a far more responsible choice than to drive.

There is another choice: designate a driver and hope that person sticks to the plan of not drinking. It is not failsafe, but it looks like it is better than driving, walking or even calling a cab. Norton Hare certainly encourages everyone to be safe and designate a driver over this holiday season. Don't become a statistic or involuntary blood donor.

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.

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