Today, many Kansans have their cellphones with them whenever they drive. But how can a motorist best use their smart phones if and when they’re stopped, investigated and even ultimately arrested for DUI?
In Kansas, when you are stopped, investigated and subsequently arrested for driving under the influence, you have certain Constitutional and statutory rights that police must adhere to under the law. One of these is your right to consult an attorney.
But at what point does this right “kick in?” When can you use your phone to call a criminal defense attorney if you’re being investigated for probable cause during a traffic stop?
Implied Consent & Your Right to Counsel
Under the DUI Implied Consent law in Kansas, you are presumed to have given your legal consent for the state to test your breath, blood, urine or other bodily fluids for the presence of alcohol and or drugs when you applied for and received your driver’s license.
This means that the police can ask you for blood or breath alcohol samples and if you refuse to give these samples, then the police and government have the right to suspend your license or even prosecute you for refusing.
But the decision of whether to refuse or submit to chemical testing is a serious choice that’s complicated by many factors, not the least of which is the government’s harsh refusal penalty of license suspension. So, this would be a natural point at which most people would seek legal advice and want to call an attorney.
Unfortunately, Kansas affords no right to consult with an attorney regarding whether or not to submit to testing. In fact, you will be notified by police that your right to speak with an attorney kicks in after testing is completed, and only if testing is completed. You will also be notified that you have the right to request an additional, independent test of your blood alcohol content.
Another problem is that you may not be in possession of your phone at the testing point of the DUI process. Police will often search you and the interior of your vehicle during the initial investigation. They can even take possession of your phone and your vehicle for safety reasons, and after a DUI arrest, will often have your vehicle towed off the road and impounded. If your phone was in the car, it’ll be inventoried but you won’t be seeing it for awhile.
So, how can your smartphone help you? Unlike Kansas, Missouri’s DUI –DWI laws do provide suspects the opportunity to contact legal counsel before deciding whether to submit to or refuse a chemical test. So, if you have your phone or ask to use one so you can talk to a lawyer, you’ll have 20 minutes to get in touch with one for advice before a refusal is charged.
Probably the best thing your phone can do for you is to prevent being investigated for DUI in the first place. Use it to call an Uber or a sober friend who can drive you around safely whenever you have consumed alcohol.
And, in Kansas, when you’re finally given the opportunity to call for help, don’t waste it. You may need to search for a qualified DUI defense attorney or contact a loved one to help search on your behalf.
We’re available and on-call for emergency situations and will meet with clients being held on DUI charges in Johnson County, Olathe, Overland Park, Lenexa, Kansas City and elsewhere.