DUI checkpoints across the KC Metro over Labor day. Whats the deal.

I saw this article on the Kansas City Kansas the other day and it provoked me to make a comment.  Here is the post.  I am a DUI lawyer in Kansas and I agree with most of this post. The protections provided for us by the fifth amendment to the US constitution provide protection for individuals not to self incriminate. I believe as do most defense lawyers that forcing someone to give evidence that incriminates them in a crime (i.e. forcing them to blow) is directly against the constitution. It shouldn't be long before this is brought up on appeal.

Now that being said, my understanding of the new law only makes if a criminal offense to refuse the breathalyzer after when a person refuses to submit to a to a test for the presence of alcohol and/or drugs and the person has a prior DUI diversion, conviction or suspension for a refusal which occurred when the person was 18 years of age or older.

COMMENTARY: DUI checkpoints invade rights, are an inefficient solution to the problem of drunk-driving

By NICK SLOAN, NJSloan212@gmail.com

Drunk-driving is a worthy problem to attack for law enforcement and society in general.  According to the Centers for Disease Control and Prevention, there were nearly 300,000 "incidents of drunk driving" each day in the United States during the 2010 calendar year. In total in 2010, there were over 112 million reported cases of drunk driving.

In Kansas, drunk driving will be a central focus during the Labor Day Weekend. DUI checkpoints (or sobriety checks) will be set up across the Kansas City metro.

The Sunflower State also had a new law passed in 2012 that makes it a crime for someone to refuse a breathalyzer test.

When it comes to solving the problem of enforcing the law, are checkpoints really the best option?

The answer if you look at the statistics is "no."

Checkpoints do not perform nearly as well as roving patrols - police units that keep an eye on the streets and highways with the idea of finding suspicious drivers.

• A handful of studies have confirmed that checkpoints are not as efficient as simple roving patrols are. In 2009, officers in the great state of California stopped nearly 1.8 million drivers at DUI checkpoints. Just over 5,000 individuals were arrested, meaning there was a success rate of around .45 percent. That's not 45 percent - it's .45 percent. In the same state during the same calendar year, roving patrols had a 14.7 percent rate in finding drunk drivers, as over 5,800 drunk drivers were arrested after roving patrols checked out nearly 40,000 vehicles.

• In 2007, the Commonwealth of Virginia had a .33 percent checkpoint success rate. When it came to the roving patrol units, there was an 8.1 percent success rate in 2007.

• Locally, a blog called KC Checkpoint keeps track of the efforts in the Kansas City metro to curb drunk driving. Most DUI checkpoints only have a .5 - 2 percent success rate, assuming the numbers are correct.

DUI checkpoints are not only an inefficient way to crackdown on drunks, but are unfair to the 98-99 percent of drivers out there who are not morons.

Why should the sober drivers have to submit to a breathalyzer test? Non-drinkers could be committing an illegal act simply because they don't want their rights trampled. Shouldn't the drunk driving law just be enforced without that little breathalyzer part?

The word "freedom" is greatly over-used in today's political world.

But it's not with DUI checkpoints. DUI checkpoints infringe on the non-drunks.

I respect and 100 percent agree with cracking down on drunk drivers. When I was three years old, I was involved in a car accident that was caused by a drunk driver.

Drunk drivers, especially repeating offenders, deserve strict punishment and there's no one who will carry the flag higher on that issue than me.

Checkpoints, however, are not the best way to go if the idea is to crack down on a larger percentage of them.

Isn't a better idea to assign police patrols to an area that's heavily populated with bars? Isn't it better for the rest of us if the police investigated and looked for suspicious drivers?

Driving in the late hours, you don't need a master's degree to spot a drunk driver, especially if you're in a one-lane road. If you see a driver swerve, stop suddenly or do anything else weird while driving, it's safe to say he or she is probably drunk.

Police would at least have a good reason to pull the driver over in that instance and not cause headaches for those who follow the law.

It's important to nab all of the drunk drivers out there.

However, the rights of the law-abiding drivers should be protected too.

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.