Wednesday, June 27, 2012

New DUI law in Kansas looks to be unconstitutional.

Kansas we have a problem.  The new DUI law.  Now I know what your thinking…Drinking and driving is bad and we shouldn’t encourage it.  I agree.  But this is not the way.  Right now if you refuse a breath test at a traffic stop there are penalties.  Many municipalities have made it a city code violation to refuse a test at the car and they have made it punishable by a fine.  Also, a refusal to take an intoxilyzer after arrested will have serious implications on your driver’s license.  But this law goes further, it criminalizes a refusal to take the intoxilyzer and make is have a jail penalty just like a DUI conviction.

That is bad news and let me tell you why.  It’s a thing called the U.S. Constitution.

Amendment #5
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I believe that this new law runs contrary to your constitutional rights.  Primarily the fifth amendment as it basically is forcing you to provide evidence against yourself in a criminal case.  It has been a long held maxim that you don’t have to cooperate with an investigation that is trying to put you in jail.  This new law is requiring you to do just that.  If you take the test you are providing evidence that you have violated the law. The prosecutors and legislators are eroding your constitutionally protected rights.  This law will surely be challenged on its constitutionality.  If you find yourself in a situation where you need a DUI lawyer give us a call and we can fight for your rights.  Here is the article that inspired this post.

New law in Kansas targets repeat drunken drivers
By Tom Izzo

“Professional drunks,” Johnson County District Attorney Steve Howe calls drivers who habitually consume alcohol before getting behind the wheel.  And a new law, which Howe pushed, directly targets them.  Beginning July 1, Kansas will become one of a handful of states that mandate jail time for repeat offenders who refuse breath or blood tests after being stopped for suspicion of driving drunk.  The law was designed to correct a common scenario involving test refusals by motorists who knew their way around the legal system and thus refused the tests, leaving prosecutors little evidence for convictions.

Refusal rates in Johnson County have been climbing steadily and this year are running close to 30 percent, Howe said.  “These people pose a threat,” Howe said. “We need to hold them accountable.”  First-time offenders are exempted from the new law.  Currently in Kansas, and most other states, refusing the tests can result in a driver’s license being suspended.  But that fails to deter many chronic offenders who continue to drive with or without a license, Howe said.  The new law carries the same penalties as a DUI conviction — up to a year in jail for those with multiple convictions — and takes away the incentive to refuse the tests, Howe said.

But critics say it will cost the state hundreds of thousands of dollars in increased court and incarceration costs. And they maintain it is rife with potential constitutional violations that likely will bring prolonged court challenges.  “There’s going to be a non-stop parade of litigation while this law is in effect,” said a veteran criminal defense lawyer in Kansas.  Yet one of the selling points that prosecutors used to get the law passed was that it would cut down on the number of DUI cases being taken to trial, he said.  The law will make criminals of people who only are suspected of driving under the influence and want to exercise their right against self-incrimination, Norton said. It also takes away their right to remain silent or to be free from warrantless searches.  “It doesn’t do anything to curb drunk driving or alcohol-related crashes,” Norton said. “It only makes it easier to convict people they suspect.”

However, those kinds of constitutional questions have been raised in other states, and the laws have been upheld as constitutional, according to Bill Lemons, traffic safety resource prosecutor for the Minnesota County Attorneys Association.  Minnesota implemented a refusal law in 1988 and expanded it to include first-time offenders in 1993, Lemons said.  It has resulted in a drastic reduction in the percentage of DUI stops that result in test refusals, he said.  Howe hopes the law will have the same effect here.

Even before this law, Kansas was one of the top states in the country in implementing laws to counter drunken driving, according to data compiled by Mothers Against Drunk Driving.  Under MADD’s rating system, Kansas received five stars, its top mark. Only four other states rated that highly. Missouri, which considered but did not pass a similar refusal law in 2010, rated three stars from MADD.  “It (Kansas) is near the top as far as having the toughest penalties on the books,” said Frank Harris, MADD’s state legislative affairs manager.

Harris called the new Kansas law a “step in the right direction.”  “Refusal is a problem across the country,” he said. “It allows offenders to elude justice.”  Some other jurisdictions have conducted “no refusal” programs, often around holiday weekends, according to Harris. Coordinating with local prosecutors and judges, police confronted with a refusal seek a search warrant to obtain the breath or blood sample. The threat of the search warrant is often enough to convince the suspect to voluntarily submit to the testing, he said.  Howe said that kind of approach would be “unworkable” here. It would necessitate having judges on call around the clock and would “flood” hospitals with DUI suspects being brought in for blood draws, he said.  One question yet to be answered nationally is what effect laws like the one passed in Kansas have on DUI-related crash rates.  No studies have been done, said Robert Voas, senior research scientist for the Maryland-based Alcohol, Policy and Safety Research Center.  A study he co-authored in 2009 showed that people who refused testing were less likely to be convicted, and more likely to be recidivist drunken drivers.

Continuing to allow drunken drivers to evade prosecution by refusing tests is simply rewarding bad and dangerous behavior, Howe believes.

“We’re gambling with people’s lives,” he said.

Monday, June 25, 2012

NFL to push for more punishment for players who recieve DUI charges.

Three players have been arrested in the last nine days?  Maybe the NFL needs to hand down more punishment for players that are busted for DUI.  That is just what it seems they are trying to do.  It looks like the union and the owners have been talking about this for sometime but the owners don't want to make the necessary concessions to make it happen.

In, my opinion I don't think they need to focus on more stiff punishment for players accused of drunk driving.  But maybe if they are convicted of a drunk driving offense then more on field sanctions would be reasonable.  The simple fact of the matter is that when a regular person gets a DUI charge they may face negative ramifications at their place of employment.  The players should be held to that same standard.  To enforce some sort of punishment based on just a "charge" or a better term is aqcusation of drunk driving simply isn't fair.  After all, they should be presumed innocent.

Here is the article that inspired this post.

NFL has been pushing for increased DUI discipline
by Mike Florio

After a rash of recent DUI arrests, with three players popped in nine days for driving drunk, it’s obvious that whatever the NFL is doing to prevent players from possibly killing paying customers isn’t working. Mike Lupica of the New York Daily News agrees that more needs to be done.  “A guy over the legal limit for alcohol behind the wheel of a car, in fact, is as dangerous as a football player like Plaxico Burress going into a crowded club and having a couple of drinks with a loaded unlicensed handgun in his pants,” Lupica contends.

He’s right.  And, actually, a small piece of metal whizzing around a bar may be less dangerous than a 2,000-pound chunk of it flying down the street.  Per a source with knowledge of the NFL’s thinking, the league has wanted to increase the penalties for several years.  The league contends, we’re told, that the union has resisted.  In fairness to the NFLPA, however, the league could get higher DUI penalties if the league was willing to make the kind of concession necessary to get the union to agree.  If, for example, the NFL were willing to export the appeals process for violations of the substance-abuse policy to a neutral arbitrator, the players may be willing to allow that arbitrator to uphold or reject the stiffer proposed punishments for players who drive drunk.

Thus, while the NFLPA understandably is protecting the rights of men who technically are on their own time and who face consequences via the criminal justice system, both sides need to come together and look at the bigger picture.  Ultimately, this is an entertainment business.  And the men providing the entertainment shouldn’t randomly be endangering the lives of the folks they’re trying to entertain, either by driving drunk or by throwing swords into the stands.