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.
It looks like the Douglas County District Attorney dismissed the DUI charge against former KU football player and Pro Football player Elvis Patterson. It turns out that after reviewing the tape of the DUI case shot by the officer's dash cam and in light of the defendant's medical condition the Prosecutors determined that there was not enough evidence to pursue a conviction. It just goes to show you that you don't have to be drunk to fail a field sobriety test. Like any physical test there are many different factors that can contribute to a negative response to a directive by an officer. These tests are very subjective and we always recommend that anyone that is pulled over by the police and suspected of a DUI to refuse the field sobriety tests. You are not required to take them so don't give the police anymore evidence against you.
