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.

Harsher Kansas DUI Laws Are 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.

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.

Facebook MIP

A college student in Wisconsin was stung by the police for being a Minor in Possession of Alcohol (MIP) recently via Facebook. The kid had about 400 friends on Facebook and accepted the offer of what appeared to be a young, pretty girl to be friends on the social networking site. This allowed his new "friend" to access the 19 year old's photos on Facebook, at least one of which showed him holding a beer can. The new "friend" was actually a police officer who then contacted the kid and got him down to the police station where apparently he gave a confession to possessing or consuming beer while underage. You can read this ridiculous story here.

I would like to be shocked or dismayed by the Big Brother tactics employed by this, obviously underworked, police officer, but I am not. I have blogged previously about people needing to be very careful about what they post on their Myspace and Facebook profiles, because it can and will be used against you. I have also discussed the lengths to which local police agencies will go to find and ticket underage drinkers. Our page concerning Kansas MIP and MIC cases on our website talks about officers going undercover at high school basketball games to try to hear about teenage beer parties. Officers regularly roam neighborhoods on weekends looking for groups of cars that may indicate a party is happening, and then go look in windows to see if they can spot a young-looking person drinking a beer.

Different people will feel differently about the drinking age and whether expending any precious police resources on Kansas MIP and MIC cases is appropriate. That is not my issue with the Wisonsin Facebook MIP case. It is one thing to try to find and prevent active, ongoing drinking by minors because kids that drink are in harm's way while they are drinking and intoxicated. They can get sick (and are afraid to report it to adults or go to the hospital because of getting cited for MIP or MIC), they can get in cars and have an accident, they get in physical altercations and things like date rape can happen. So, it is at least arguable that the police should try to prevent underage drinking while it is happening. However, it is a total waste of time and money to be going on the internet, setting up fake profiles, "friending" everyone you can find under the age of 21, and then reviewing their profiles and photos for evidence of prior drinking.

A photo of a prior episode where a young person held a container that looks like an alcoholic beverage container is not good evidence of the crime. There is likely no proof of the jurisdiction in which the "possession" occurred from a photo, and there is no evidence that the container actually contains alcohol. The label of the can or container, assuming you could read that it says something like "contains 3.2% alcohol", is hearsay and can't be offered to prove the truth of that statement, that the can actually contains 3.2% alcohol. There are also situations in which a person under 21 may legally possess alcohol (i.e., with his or her parents, serving drinks at a restaurant, etc.). The police also have to know what date, at least roughly, that the drinking allegedly occurred, which an online photo won't usually tell you. So, in addition to all of the trouble of setting up these stings to get the photos of the young people, the police then have to count on a full confession from the suspect. That is the only way that they can get actual evidence of an MIP or MIC that they can use in court to get a conviction. The person in the photo would have to come in give a statement that the container in the photo contained alcohol, they were drinking or possessing it, that it all occurred in that particular jurisdiction, and when it happened.

In other words, this is an enormous amount of work by the police to try to nail someone for a fairly minor charge, and for conduct that has already occurred in the past, maybe not even recent past. And, the police are using underhanded tactics by lying to the suspects in order to get access to their photos online. And, none of this really addresses the real problems with underage drinking. The kid in Wisconsin paid a $272.00 fine and moved on with his life. I am not sure what lesson that he learned, other than to watch out for cops on the internet. I have not seen this specific tactic used in a Kansas MIP or MIC case, but I won't be surprised when it happens. What you put online about yourself you are really putting in the public domain, and it will be used against you one way or another. Apparently, the government has computers and they are using them to watch you.

2009 Kansas DUI Results

2009 DUI Case Results: The following are some of the results Norton Hare, LLC, has obtained for clients in DUI cases in 2009 (the year is not over as of this posting). This list only includes DUI cases and not any of the results we have obtained in defending other types of cases. Also, this list only includes DUI cases that resulted in dismissals or acquittals and does not include the favorable results we have obtained for clients that involved resolution by plea or diversion. It is extremely important to remember, though, that past performance does not guarantee or predict future result. Every case is different and each must be judged on its own merits.

J.G.: Client allegedly was weaving back and forth between lanes and speeding. He refused a blood test. Found “Not Guilty” of DUI after a trial in Kansas City, Kansas.

T.M.: Client stopped for speeding, allegedly failed field sobriety tests and gave a breath sample of .093%. He was found “Not Guilty” of DUI after a trial in Johnson County District Court.

T.W.: Captain in the U.S. Army was stopped on his motorcycle for Exhibition of Acceleration, failed field sobriety tests and refused a breath test. The DUI was dismissed by the court in Overland Park, Kansas.’

J.D.: Client was stopped in parking lot of a bar in Overland Park, failed field sobriety tests and gave a breath test sample of .220%. After Norton Hare, LLC’s involvement, felony DUI charges were declined by the Johnson County DA’s Office and the client never had to go to court.

J.B.: Client was found sleeping in his car outside of a convenience store in Merriam, Kansas. After failing field sobriety tests he was given a breath test and blew a .164%. The DUI charge was dismissed by the Merriam Municipal Court.

D.W.: Client stopped for Exhibition of Acceleration leaving the parking lot of a bar and grill in Olathe, Kansas. He refused the breath test. The DUI case was dismissed before trial.

C.W.: Client arrested for DUI after a car accident in Overland Park, Kansas. He was found “Not Guilty” by the court.

D.H.: Client stopped for swerving in downtown Leavenworth, Kansas. He failed field sobriety tests and refused a breath test at the jail. After trial, he was found “Not Guilty” of DUI.

D.H.: Client charged with a felony DUI in Johnson County District Court after his stop for speeding in Gardner, Kansas. He refused a breath test. The jury found him “Not Guilty” of felony DUI.

R. D.: Client stopped for speeding and swerving in Douglas County, Kansas. He failed field sobriety tests, admitted to drinking 14 beers at a wedding and blew a .154. The DUI case was dismissed before trial.

N.P.: Client stopped for speeding and weaving in Douglas County, Kansas. He failed field tests and blew a .288% breath test at the jail. The DUI case was dismissed before trial.

K.K.: Client here on business from Colorado and got stopped. He failed field tests and blew a .077%. The DUI case was dismissed before trial.

C.M.: Client arrested for DUI in Lawrence, Kansas and took a breath test with a result of .171. DUI case was dismissed before trial.

H.M.: Client was involved in a car accident in Lawrence, Kansas. He failed field sobriety tests and refused a breath test. DUI case dismissed before trial.

C.H.: Client was stopped for speeding while lost in southern Johnson County, Kansas, and charged with DUI. Client was found “Not Guilty” after trial in Johnson County District Court.

B.G.: Client was involved in a disturbance in Overland Park, Kansas and charged with a DUI when he drove back to the scene. He took a breath test and blew .171. The case was dismissed before trial.

D.B.: Client stopped for not having taillights on and failed field sobriety tests. He refused the breath test and was charged with a felony DUI. The DUI was dismissed at the preliminary hearing in Johnson County District Court.

J.O.: Client stopped in Leawood, Kansas for suspicious activity. He failed field sobriety tests and blew a .109 at the station. DUI charge was dismissed by the Leawood Municipal Court.

B.W.: Client stopped for weaving in Overland Park, Kansas. He failed field sobriety tests and refused a breath test at the station. The DUI charge was dismissed on the day of trial.

A.S.: Client stopped for drag racing in Gardner, Kansas, and charged with a DUI after field tests. DUI case was dismissed before trial.

W.S.: Client was allegedly involved in an accident in which a vehicle hit an electrical pole and knocked it down. The client took a breath test at the Shawnee Police Department and blew a .273%. After trial, the client was found “Not Guilty”.

M.K.: Client was stopped in Mission, Kansas and failed field sobriety tests. He blew a .150% breath test at the station. DUI case dismissed before trial.

L.C.: Client was stopped for failure to use her turn signal and failed sobriety tests in Overland Park, Kansas. She blew a .147 breath test at the station. Her DUI case was dismissed on the day of trial.

S.S.: Client stopped for hitting the curb in Prairie Village, Kansas. She was arrested for DUI and taken to the police station where she blew a .145% breath test. The DUI charge was dismissed before trial.

J.S.: Client stopped for speeding in Mission, Kansas. He was arrested and blew .105% at the station when asked to submit to a breath test. The judge found him “Not Guilty” of DUI following trial.

T.B.: Olathe police made contact with client after receiving a tip about an alleged drunk driver. After submitting to field sobriety tests on the scene, he was arrested and taken back to the station where he refused the breath test. The DUI was dismissed on the day of trial.

D.H.: Client was stopped for swerving in his lane in Miami County and submitted to a blood draw with a result of .18. The DUI charge was dismissed after the court granted our motion to suppress evidence for an unconstitutional stop.

T.H.: Client was stopped in Douglas County and charged with DUI. The DUI charge was dismissed after the court granted our motion to suppress evidence for an unconstitutional arrest.

E.E.: Client was stopped in Douglas County and charged with a second time DUI. After Norton Hare’s involvement, the Douglas County District Attorney’s Office declined to file the DUI charge.

R.R.: Client was arrested after almost striking two police officers investigating another collision. Client was charged with a DWI. The DWI charge was dismissed prior to trial.

2008 Kansas DUI and Missouri DWI Results

2008 DUI Case Results: The following are some of the results we have obtained for clients in DUI cases in 2008. This list only includes DUI cases and not any of the results we have obtained in defending other types of cases. Also, this list only includes DUI cases that resulted in dismissals or acquittals and does not include the favorable results we have obtained for clients that involved resolution by plea or diversion. It is extremely important to remember, though, that past performance does not guarantee or predict future result. Every case is different and each must be judged on its own merits.

G.R.: Client was stopped in Prairie Village, Kansas and cited for DUI. The DUI case was dismissed before trial.

V.N.: Client stopped for traffic violations in Shawnee, Kansas and failed field sobriety tests. He refused a breath test at the station. After a trial, he was found “Not Guilty”.

R. M: Client was stopped after a chase through Lawrence, Kansas. He was subsequently charged with a DUI. The DUI was dismissed before trial.

K.D.: Client was stopped for speeding in Olathe, Kansas. He failed field sobriety tests and took a breath test resulting in a .088% result. The DUI case was dismissed on the day of trial.

J.M.: Client was arrested in Olathe, Kansas after failing field sobriety tests. He was given a breath test and blew a .219%. The DUI case was dismissed on the day of trial.

K.C.: DUI case dismissed in Kansas City, Kansas.

M.W.: Client was arrested for DUI after a traffic accident in Overland Park, Kansas. He was taken to the station where he blew a .200%. He was found “Not Guilty” after trial in Johnson County District Court.

C.K.: DUI dismissed before trial in Johnson County District Court.

S.W.: Client was found sleeping in his car outside of a McDonald’s with the engine running. He was given field sobriety tests and arrested for a felony DUI. The felony DUI charge was dismissed before trial in Johnson County District Court.

M.L.: Client arrested for DUI in Leawood, Kansas. He failed field sobriety tests and took a breath test resulting in a .180%. DUI case dismissed on the date of trial.

S.L.: Client was stopped for speeding in Miami County, Kansas. He failed field sobriety testing and was arrested for DUI. He refused to take the breath test at the jail. The DUI case was dismissed just before the scheduled jury trial.

G.W.: Client pulled over for weaving in Lawrence, Kansas, and failed field sobriety tests. He was taken to the jail where he blew a .140%. The DUI case was dismissed before trial.

C.C.: Client was contacted after an accident in which his vehicle ran into a fence in Ottawa, Kansas. He was given field sobriety tests and arrested for DUI. At the station he blew a .160% breath test. The DUI case was dismissed by the court for destruction of evidence.

M.Q.: Client was found sleeping in her running car in the parking lot of a store in Gardner, Kansas. She failed field sobriety tests and blew a .182% at the county jail. The DUI case was dismissed before trial.

J.P.: Client arrested for a DUI in Roeland Park, Kansas. She blew a .198% in the machine at the station. DUI case dismissed before trial.

M.H.: Client stopped for speeding in Mission, Kansas. She failed field sobriety tests and blew a breath test of .120%. The DUI case was dismissed before trial.

D.M.: Client stopped for speeding in Spring Hill, Kansas. He failed field sobriety tests and was arrested for DUI. At the station he blew .116%. He was found “Not Guilty” of the DUI at trial.

J.S.: Client stopped in Johnson County, Kansas for traffic violations. She failed field sobriety tests and was taken to the jail where she blew a .130% on the breath testing machine. She was found “Not Guilty” of the DUI after trial in Johnson County District Court.

J.H.: Client was charged with a felony DUI in Wyandotte County, Kansas. The DUI case was dismissed just before the scheduled jury trial.

P.K.: Client was arrested for a DUI in Olathe, Kansas, and took a breath test with a result of .207%. The DUI case was dismissed just before trial.

R.B.: Client was arrested in Overland Park, Kansas for what would have been a felony DUI. She was found “Not Guilty” of the DUI.

M.P.: Client charged with DUI in Johnson County District Court. He was found “Not Guilty” of the DUI after trial.

J.S.: Client stopped for speeding in Mission, Kansas. She failed field sobriety tests and was taken to the station where she blew a .105%. She was found “Not Guilty” of DUI after trial.

B. G.: Client stopped in Olathe, Kansas for a traffic violation. He failed field sobriety tests and was arrested for DUI. He refused the breath test. He was found “Not Guilty” after trial.

F.K.: Client stopped in Ottawa for weaving within his lane. Client failed field sobriety tests, was arrested for DUI and taken to the station. Client submitted to a breath test with a result of .167%. DUI dismissed prior to a trial on defendant’s motions to suppress evidence.

T.B.: Client stopped in Olathe pursuant to a law enforcement alert and submitted to field sobriety testing. He was arrested and failed the breath test at the station. The DUI was dismissed after the court granted defendant’s motion to suppress evidence.

A.A.: Client arrested and charged with DUI in Westwood, Kansas. DUI charge dismissed by the prosecutor before trial.

K.R.: Client arrested in Overland Park, Kansas, for DUI. DUI charge dismissed by the court prior to trial.

D.S.: Client involved in a severe accident in Kansas City, Missouri. Client charged with DWI. The DWI charge was dismissed by the prosecutor on the day of trial.

2007 Kansas DUI Case Results

I have decided to post some of the results our law firm has gotten in Kansas DUI or Missouri DWI cases over the past three years. Frankly, until recently, we haven't kept very good records. When we won a case, we closed the file and moved on to the next one. But, I have been able to track down some examples of results in Kansas DUI cases and a handful of Missouri cases, so I thought I would share them. I have the files to back up every one of these claims either in our office or in storage. I am going to post them on our website, too. Here is 2007:

2007 DUI Case Results: The following are some of the results we have obtained for clients in DUI cases in 2007. This list only includes DUI cases and not any of the results we have obtained in defending other types of cases. Also, this list only includes DUI cases that resulted in dismissals or acquittals and does not include the favorable results we have obtained for clients that involved resolution by plea or diversion. It is extremely important to remember, though, that past performance does not guarantee or predict future result. Every case is different and each must be judged on its own merits.

C.B.: Client stopped in Olathe, Kansas for traffic violations and arrested for DUI after failing field sobriety tests. He took a breath test and blew .13%. He was found “Not Guilty” after a trial.

D.K.: Client stopped in Olathe, Kansas and arrested for DUI. He took a breath test in excess of .08%. The DUI was dismissed before trial.

T.T.: Client was sleeping in his car with the engine running in Johnson County, Kansas. He was arrested for DUI and took a breath test in excess of the legal limit. The Johnson County District Court sustained a motion to suppress evidence and the DUI case was dismissed.

R. M: Felony DUI case dismissed in Johnson County District Court.

J.F.: DUI in Douglas County, Kansas dismissed.

D.H. Client stopped for traffic violation in Lawrence, Kansas. He failed field sobriety tests and refused a breath test. DUI case dismissed before trial.

T.M.: DUI in Edwardsville, Kansas dismissed.

J.W.: Felony DUI dismissed at preliminary hearing in Johnson County District Court.

V.S.: Client from Texas in Overland Park, Kansas for business and got stopped for traffic violations. He failed field sobriety tests and was arrested for a DUI. Client found “Not Guilty” of DUI at trial.

S.H.: Felony DUI dismissed in Johnson County District Court.

J.R.: DUI case dismissed in Olathe Municipal Court.

S.C.: Client found “Not Guilty” after trial in Shawnee Municipal Court.

T.H.: Client was stopped for traffic violation in Mission, Kansas. He was arrested for DUI. After trial, he was found “Not Guilty.

A.L.: Felony DUI dismissed in Johnson County District Court.

P.B.: DUI dismissed before trial in Douglas County District Court.

D.D.: Felony DUI dismissed in Johnson County District Court.

E.E.: DUI dismissed in Leavenworth County District Court.

J.B.: Client arrested for DUI after failing field sobriety tests in Miami County, Kansas. He took a breath test and was well over the legal limit. The DUI case was dismissed before trial.

D.D.: DUI in Gardner, Kansas dismissed before trial.

R.E.: Client arrested for DUI in Lawrence, Kansas and submitted a breath test in excess of the legal limit. DUI case was dismissed before trial.

J.H.: DUI case in Kansas City, Kansas dismissed before trial.

B.W.: DUI with a breath test in excess of .08% in Leawood Kansas dismissed before trial.

M.P.: Client arrested for DUI in Overland Park, Kansas. DUI charge was dismissed before trial.

K.S.: Client stopped for driving without headlights in Mission, Kansas. Client was arrested for DUI and failed the breath test at the station. DUI dismissed after a hearing where the court granted defendant’s motion to suppress evidence.

S.I.: Client arrested for DUI in Douglas County, Kansas. Client submitted a breath test sample in excess of the legal limit. DUI charge dismissed by prosecutor.

M.M.: Client arrested in Johnson County, Kansas, and charged with DUI. Client submitted a breath test sample in excess of the legal limit. DUI charge dismissed by the prosecutor before trial.

R.M.: Client charged with two separate DUI charges from arising from two separate incidents in Miami County, Kansas. Both DUI cases were dismissed by the prosecutor prior to trial.

J.L.: Client was arrested in Miami County, Kansas, and charged with DUI. DUI charge dismissed by the prosecutor prior to trial.

The Power of Video

I have found that in every Kansas DUI case, as well as just about every other kind of case, there are at least two sides to every story. Often, the way that the arresting officer and the person who got arrested remember the facts is quite different. For the last decade or so, though, there has increasing been a neutral witness to these cases. Video cameras that capture video and audio recordings of interaction between a police officer and a citizen can make a huge difference in DUI cases. I have probably had more successful outcomes on behalf of my clients because of video than for any other reason. Video really tells the truth, the whole truth and nothing but the truth.

Two recent examples demonstrate the power of video in criminal cases. In the first case, Hollywood, Florida police officers are captured on video discussing how they are going to frame a person for a car accident. You can see the video here. In a second case, police are caught giving each other a hand signal for planting drugs on a person, and then, in fact, planting the drugs on the guy. You can see that video here. These are just two recent examples. Video in police vehicle is increasingly capturing police misconduct. That is a good thing. As I have said many times here before, most police officers are dedicated professionals doing a difficult job. However, there are always a few who should not be in the position of power that they are in and video can make a big difference.

Likewise, video regularly captures people committing crimes and helps law enforcement to solve crimes. A video in a Kansas DUI case that shows that a person appears to be drunk can be the most powerful evidence a prosecutor has. In addition, video evidence can refute claims by citizens of police brutality or other misconduct that can be difficult for an officer to defend against. So, videotaping of contacts between police and citizens can be beneficial to both sides of the equation. It provides the only neutral, unbiased recounting of what occurred. If the police are doing their jobs properly, there should be nothing to hide and the video will only bolster his or her case.

There is a national push for the videotaping of all interrogations of suspects of crimes. Many police departments already require it. South Carolina DUI law mandates the videotaping of all DUI arrests from the time that the officer's lights come on through field sobriety tests and the breath test at the station. Kansas ought to follow the lead of South Carolina.

Kansas DUI laws ought to require that field tests and breath tests be videotaped in all cases in which it is possible. There are police departments which have not installed dash-mounted videocameras in their cars even though the technology has been available and cheap for decades. There are officers who are assigned DUI and traffic enforcement by their departments who, apparently purposefully, do not drive the cars that are equipped with videocameras. Many of the major sheriff's departments in eastern Kansas do not videotape the breath tests of suspects although such technology is cheap and widely available. So, when a dispute comes up between an officer and a Kansas DUI suspect about whether the person was observed for 20 minutes, or belched before the breath test, or was read the Kansas Implied Consent Advisories, etc. it is one person's word against the others. Given that the driver has the burden of proof at the administrative driver's license hearing, yet is allowed no video or any way to obtain the evidence he or she will need, the neutral, unbiased evidence from a videocamera can make a huge difference. There really is no rational opposing view on this issue.

UPDATE: I forgot that the thing that prompted me to go on this rant about video evidence in the first place was this video of a Maricopa County Sheriff's Deputy stealing documents from the file of a defense attorney. The defendant notices the deputy reading the confidential documents, and then taking some and handing them off to another deputy who spirits them away. The defense attorney then catches on and begins to complain to the judge. The judge tells her to calm down and does next to nothing. The prosecutor, who sees the whole thing, does nothing. Seriously, you should watch the video. The Sheriff's Department came out later and made some lame excuse for the deputy and refused to take any action against him. If it were not for the video evidence of this theft and extreme breach of attorney/client privilege, I am sure all of this would have been swept quickly under the rug and the story would have been that the defense attorney overreacted or made it all up. Again, this is the power of video.

Drunk With Power

A police officer brought a DUI suspect to a Chicago-area hospital and requested that the hospital draw his blood to be tested for the presence of alcohol. The head nurse at the hospital said that the suspect would have to be admitted pursuant to hospital policy before the blood could be drawn. That sounds fairly normal to me. However, the officer decided that he didn't like this answer and proceeded to arrest the head nurse. She was handcuffed and stuffed in his car for 45 minutes until the situation could be resolved. You can read the story here. The handcuffs were too tight, causing her to need treatment at the hospital the following day (this happens a lot with handcuffs). I don't know what she was arrested for, probably "obstruction" of the officer for not violating her employer's policy, dropping everything else she was doing, and performing an immediate on-demand blood test. Naturally, she is now suing the cop.

While this case from Chicago sounds extreme, it was only recently that a similar situation came up in a Kansas DUI. Former Johnson County District Attorney Phill Kline was threatening to arrest hospital personnell for obstruction if they did not immediately comply with police demands for blood tests. I am not sure that there is a true legal basis for this. Hospitals are private entities, unassociated with the government and law enforcement, and many of them take patient care and patient privacy very seriously. They shouldn't be arrested for not dropping all of their other patients, many of whom are in the ER with serious unjuries and illnesses, and violating their own policies upon the demand of the police for immediate attention. Kansas DUI laws allow police to obtain blood tests in certain situations, but I do not believe that those laws mandate the assistance of hospitals.

All of the foregoing is why many states are skipping the hospitals altogether and sending the police officers to quickie phlebotomist classes. Once "trained" to take your blood, they can just strap you down at the police station and withdraw it themselves. The National Highway Transportation Safety Administration is conducting a two year study of these programs and then, no doubt, the will encourage it (i.e., require it) nationwide. You can read about that here. The laws will allow for forcibly taking the blood of people who refuse a breath test, and the blood will be taken by a law enforcement officer not a nurse or doctor. "Keep your laws off of my body!" Forget about it.

It won't be long until Kansas goes to forced blood draws. This is the nationwide trend, unfortunately. Instead of a hospital setting, folks will get bent over the hood of their car and will have their blood withdrawn by the police on the side of the road. Any Kansas DUI lawyer ought to already have experience with interpretting and attacking blood test results, but this skill will be more and more important in the future. We have already moved into the age of big brother, and this big brother has a syringe and all of the power.

DUI Conviction Will Prevent Entry to Canada

Here is a story about the hassles involved with trying to get into Canada if you have a DUI conviction on your record. Under Kansas DUI laws, and the DUI laws of most other states in America, a first and second time DUI is considered a misdemeanor. However, in Canada, any DUI is considered a felony and Canada does not allow individuals into its country if they have been convicted of a crime which would be a felony under Canadian law. As the article points out, more and more Americans are being denied entry at the border as technology makes it easier for the Canadian immigration authorities to discover prior DUI convictions. In my own practice, I have seen this become a problem for people who are trying to get into Canada for business, vacation or fishing and hunting. Even George Bush was required to get a special visa to enter Canada while he was President of the United States, because of a 1976 DUI! So, they are pretty serious about it. In fact, a diversion can be a problem because while a person is on diversion, his or her case is still considered to be pending. Canada also won't let you in if you have a "felony" case pending. Whether you get stopped at the border and detained for a background check is largely a question of luck, but if you do and you have a DUI in Kansas or anywhere else it may be a problem.

This is just one of the many incidental costs associated with a Kansas DUI arrest. My website has a whole page of other ancillary costs involved with a DUI conviction, including increased car insurance rates, other travel restrictions, lost employment and education opportunities, and the cost of court-ordered treatment. Because of all of the hidden costs associated with a conviction, if you get charged with a DUI, you need the best Kansas DUI lawyer you can possibly find. Previous blog posts of mine have described how to find such a person to represent you. As our society becomes more and more technologically connected, the world gets smaller. A DUI conviction can haunt you, not just here, but in Canada and around the world.

Out of Control (Again)

I have blogged before about just how far out of hand things have gotten in the zeal to pursue DUI cases. However, this story from Indiana might take the cake. A 53 year old man was stopped and arrested for suspicion of DUI. He submitted to a breath test but was under the legal limit. Yes, his breath was tested at under the legal limit but, as the story says, "the officer doubted the results". I am sorry but you've got to laugh. When the machine says a person is just barely over the legal limit, law enforcement and prosecutors will believe whatever the machine spits out as gospel and tell a jury that the machine can't be wrong. When it doesn't fit their preconceived idea, though, they "doubt" the result. But, that is not what is so completely bizzare, outrageous and sad about this story.

Unable to believe that he could be wrong, the officer ordered a blood draw from this citizen. Just to be doubly sure, he also ordered the FORCED CATHETERIZATION of this poor man. Wow! These additional tests confirmed that he was, in fact, not drunk. The officer has refused to apologize, but instead has charged the man with obstruction of justice because he was apparently not cooperative during the part of the encounter in which he was "shackled to a gurney and had a catheter inserted against his will".

Urine tests in Kansas DUI cases are fairly rare, although with the new push to try to find drivers who are driving under the influence of drugs (legal and illegal), they will become more frequent. So, I can't help but wonder how long it will be before we start seeing forced catheterizations in Kansas DUI cases. Why not? We have already sacrificed almost all of our constitutional rights upon the altar of DUI, anyway. Forced blood draws are increasingly popular in other states, and last year Kansas made it easier to forcibly extract blood from citizens who are involved in accidents. So, why not start strapping people down and forcibly removing their urine?

I can't help but be cynical. These kinds of stories of government abuse pop up alarmingly frequently and the citizenry doesn't seem to care. I mean this story would be scary if the man had actually been driving drunk. But the fact that a breath test had already demonstrated that he was under the legal limit (assuming, unlike the officer, that you trust these machines), and that he had already had his blood taken, makes this story particularly outrageous. Kansas DUI law allows the police officer that has arrested a DUI suspect to obtain a breath, blood or urine test from the person, or all three, multiple times, at his or her complete discretion. I certainly hope we don't get to the point of forced catheterizations in Kansas, but don't say you weren't warned.

"The Kilogram" - Doing Some Math

I heard an interesting story on NPR this morning while driving to the office from court that demonstrates why there should always be reasonable doubt about breath test results from the Intoxilyzer 8000, which is used in all Kansas DUI breath tests, and many in Missouri: Over one hundred years ago scientist forged a kilogram in London, meticulously weighed it, and sent it to Paris where it was placed in a box and stored. It is the standard against which all other weights in the world are measured. It has only been taken out and looked at by scientists 3 times in the last one hundred years. Unfortunately, “The Kilogram”, as it is known, has lost some weight inexplicably and it is a big problem for science. It has only lost about 50 billionths of a kilogram, but for science, which is concerned with precise measurements, that is a big problem. So, there is an effort underway to replace “The Kilogram” so that measurements can be precise.

The Intoxilyer 8000 is supposed to measure the grams of alcohol per 210 liters of breath. 210 liters is roughly the size of a 55 gallon drum barrell. Of course, no one could ever blow 210 liters of breath into a machine. The sample chamber of the Intoxilyzer 8000 is only 29 cc. The machine has to multiply 29 cc enough to make it as large as a 55 gallon drum, or 105 2-liter bottles. If you do the math, it has to multiply 29 cc a total of 7,421 times to equal 210 liters. To get to a .08, the amount of alcohol in a 29cc chamber would be literally microscopic! That means any error, to even the slightest degree, in the measurement of 1 cc will cause the machine to multiply that error times 7,142.

The breath test result can be wrong if the measurement is not precise, down to the millionth of a gram. Alcohol is more concentrated in the blood than in the breath. Therefore, some conversion factor is needed to convert breath concentrations to blood concentrations. In breath testing that conversion factor is known as the “partition ratio.” The partition ratio generally used is that of 2100:1 – i.e. the amount of alcohol contained in 2100 milliliters of breath is the same amount of alcohol that is found in 1 milliliter of blood. This partition ratio of 2100:1 is based upon several assumptions. The primary assumptions that affect breath testing are:

1. That the person being tested is in the elimination phase and is no longer absorbing alcohol into the bloodstream;

2. That the test subject’s expired breath has a temperature of 34° C or 93.2° F and that this temperature corresponds to the same core temperature in all individuals;

3. That the test subject’s blood particulate (hematocrit) levels are “normal;”

4. That all of the alcohol that passes into the test chamber comes from the deep lung air of the test subject; and

5. The only substance that is absorbing light in the test chamber is ethanol.

Inaccuracies in these assumptions create inaccuracies in the estimation of blood alcohol from breath alcohol by the Intoxilyzer 8000.

Variations from these assumptions create variations in the partition ratio. Measured variations in the post-absorptive partition ratio encompassing two standard deviations of 95% of the population run from a low of 1797:1 to a high of 2763:1. When that range is extended to cover 99.7% of the population or three standard deviations, the range is 1555:1 to 3005:1. Individuals with a partition ratio of 1797:1 who are tested at .080% and .090% on an Intoxilyzer 8000 have actual blood-alcohol concentrations of .068 % and 077%, respectively. Individuals with a partition ratio of 1555:1 who are tested at .080%, .090% and .100% on an Intoxilyzer 8000 have actual blood-alcohol concentrations of .059%, .067% and .074, respectively. Moreover, as noted above, these ranges are for post-absorptive individuals, i.e. individuals in the elimination phase. Variations in the absorptive phase are even greater.

So, the Intoxilyzer 8000 makes a host of assumptions about the person blowing into the machine, including his or her partition ratio, breath and body temperature, and hematocrit level. Any deviation from these assumptions and the error is magnified thousands of times by the machine. Of course, assuming that everyone is exactly the same makes as much sense as assuming that everyone in America has a 30 inch waist.

Real scientists are deeply concerned about the 50 billionths of a kilogram which "The Kilogram" has lost. All other weight measurements in the world hinge on this. Accurate science requires accurate measurements. Kansas DUI cases, and driving privileges, hinge on the Intoxilyzer 8000 being accurate. Yet, the "science" of Kansas DUI does not require accurate measurement. Good science would also require two breath tests, even Santa Claus checks his list twice. But we don't do a confirmation breath test in Kansas. That is bad science. Anyone that says “close is good enough for government work” is not a scientist, but merely a spokesmodel for Intoxilyzer and the prosecution.

The story is interesting and you can find it here: http://www.npr.org/templates/story/story.php?storyId=112003322

Not One, But Three Failed Checklanes in One Night

The KCMO Police Department ran three (3) separate DUI checklanes in one single night last week on July 2, 2009, at three separate locations. These three checklanes yielded a whopping total of three (3) DUI arrests. Now, each one of these checklanes was staffed by a minimum of 10 police officers, and often more like 30. So, on July 2, we had somewhere between 30 and 90 police officers manning 3 separate roadblocks, stopping law-abiding citizens in three different locations around the city, all to arrest 3 people. Holy smokes! Every one of those officers was being paid overtime. The police chief likes to say that the money for these checklanes is provided by the federal government as if there is no taxpayer money used to pay for all of the overtime and equipment for these debacles. However, in addition to municipal taxes paid to the city, I pay federal taxes, too, so it doesn't make me feel much better that it was just my federal taxes wasted on this. You cannot tell me that 30 to 90 police officers could not be put to better use than to round up 3 alleged drunk drivers (remember: they are presumed innocent and some or all may acquitted of the DUI accusation). Blocking 3 separate locations, with 30-90 officers, squandering all of the citizenry's money, and then providing almost no benefit to the community seems un-American on weekend that our country celebrates the Declaration of Independence from the tyranny of the King of England.

MIssouri Passes Interlock Law

Missouri DWI/DUI laws will change as of July 1, 2009, to require ignition interlock devices to be installed on the vehicles of all people convicted of a second or subsequent DUI. The story is here. The offender will be required to pay for the device for 6 months. The law is going to be applied retroactively, which means that it will be applied to people who were arrested before the new law was passed but whose cases are still pending. That smacks of an ex post facto violation (changing the law after a crime has been committed - i.e., changing the rules in the middle of the game), but this is another one of those DUI exceptions to the US constitution.

I certainly think that ignition interlock devices are much more humane than flat-out driver's license suspensions. In the Kansas City area, particularly in the suburbs or rural areas, without a car you cannot work. You also might find it hard to buy groceries, take your kids to school or get to alcohol or drug treatment. There is virtually no public transportation. I don't see us getting light rail anytime soon, and you can't get a bus or even a taxi outside of the urban core. So, suspending driver's licenses for extended periods of time is condemning people to either (1) being jobless, maybe homeless, etc., or (2) committing more crimes by driving while suspended. While "riding dirty", many decide to also drive without insurance.

There are a lot of problems with ignition interlock devices, including malfunctions that leave people stranded, but at least this law will allow people to get to and from work for the most part. This is as opposed to Kansas DUI law in which a first time offender who refuses a breath test or blows over a .15 will get suspended from all driving for one year, followed by having to have the interlock device for one year. That is for a person's very first mistake in his or her lifetime. Now, that is harsh.

Drive-Through DUI

The sheriff's department in Tuscon Arizona had planned a DUI enforcement operation in which deputies would be stationed inside fast-food restaurants at night to observe customers placing their orders. Then, they would notify uniformed officers hiding outside the restaurant who could arrest the hungry people. What is possibly more absurd than this ridiculous idea is that the sheriff's department had a grant of $128,000.00 to pay for this malarkey! There are your tax dollars hard at work - staking out the Taco Bell. Here is the story from the local paper. Here is another story. To add insult to taxpayer injury, the program was actually called "Operation Would You Like Fries". I couldn't make these stories of an out-of-control government up if I tried. The Arizona authorities got the idea from the Canadian Mounted police who, apparently, have already been doing it!

Of course, the undercover officer would have had to have jumped to the conclusion of intoxication based on the way a person talked or appeared while ordering their food. There have been studies done to determine whether a police officer can accurately determine whether a person is under the influence or not based upon the odor of alcohol (they couldn't) or their appearance (they couldn't). In fact, some of the previously considered "classic symptoms" of intoxication have now been determined by the National Highway Transportation Administration to not be "clues" of impairment, after all (including bloodshot eyes and a flushed face). So, this was all very suspect anyway. Fortunately, the restaurants decided they weren't that interested in their paying customers being arrested at their place of business based on how they looked or talked.

The staking out of fast food places by undercover officers is not so far-fetched. Right here in Johnson County officers have been known to dress up undercover and go to high school activities to try to learn about teenage parties where there may be alcohol present as part of multi-jurisdictional Kansas M.I.P or M.I.C. (minor in possession/consumption) laws enforcement campaigns. I would imagine the police departments get large grants for these efforts, as well.

So, be on your best behavior next time you get the late-night munchies. The government may be watching.

We're Not in Kansas Anymore - DUI Limits Around the World

The Economist has an interesting map of all of the DUI legal limits around the world. Of course, Kansas DUI laws set the legal limit at .08 grams of alcohol per 210 liters of breath. That is actually higher than most of the rest of the world. There is a push by MADD to lower the legal limit to .05, so it may not be long until we drop the legal limit in this country, too.

Hiring the Best DUI Lawyer

In the past I have blogged about how to beat a Kansas DUI and how to hire the best Kansas DUI lawyer (also here, here and here) that you possibly can. A California Lawyer Magazine has an interesting article about the legal insdustry as it relates to the DUI business. As the article points out, the law keeps getting harsher and the DUI arrest numbers keep going up. This has created a feeding frenzy among lawyers for DUI business. The article points out the difference between attorneys who have taken the time to actually learn and apply the science involved in DUI cases, and those that are running a "fee mill", doing a high volume of cases, charging low fees and basically providing no service to their clients. These lawyers are referred to in the article as "dump trucks" or as "escort services" for reasons you will read below.

The article is important for several reasons. It highlights the fact that there is a wide diversity of talent in the DUI attorney arena. You have to do your research. Anyone that managed to get out of law school can call themselves a Kansas DUI attorney, but that doesn't mean that they actually have invested the time and money necessary to do the job the right way.

From the article:

At one end of the spectrum are the specialists who've spent much of their professional lives mastering arcane technical issues such as blood and breath partition ratios, microbial contamination in urinalysis, and the perils of retrograde extrapolation in roadside chemical tests. These attorneys typically charge anywhere from $3,500 to $10,000 to defend a first offender, not including the expert witness fees or lab tests that may be required...

At the other end of the spectrum are cut-rate practitioners with no particular expertise, who charge as little as $1,000 per case. These include "dump truck" lawyers, who sign up as many clients as possible and then dump them all on the guilty-plea docket; and "escort" lawyers, who escort clients up to the judge like a high-paid call girl, plead them guilty, and then disappear with the money.

The article also talks about these websites that sell "exclusive" listings to lawyers to be named as the attorney for Kansas or another state. The marketing of some of these sites to lawyers is enough to turn your stomach. One website out of California markets their listings to lawyers by telling them how easy it is to get hired on a DUI case and then plead it out to make quick, easy money. Unsuspecting people who have been charged with a DUI call the toll free number and the call gets routed to the attorney from the area code of the caller, or emails to the site get referred out to the lawyer. These websites will claim to have the "Best DUI Lawyers in America" or something equally as impressive, but the lawyers really are just the first people to buy the advertising space. The website are professional marketers, so the sites come up high in the rankings on search engines. The attorney may or may not have a clue about DUI defense.

The article also points out something else that is true: the best DUI attorneys in Kansas, like California, are going to be the most expensive. In the Kansas DUI defense world, you get what you pay for. Unfortunately, you cannot hire someone for a few hundred dollars and expect to receive a high level of service and skill in the defense of your case. You have to decide if you want to beat your Kansas DUI case or not. If you want to have a chance to win, you have to get the best Kansas DUI lawyer you can find in your area. That may cost more money, but if it helps you keep your driver's license, keep your job, and avoid jail, fines, court costs and higher insurance rates, it will be worth it.

The article is also interesting in that it discusses how skewed the law is against DUI cases, but how skilled, innovative and industrious DUI lawyers can find ways to win these cases. The science is not airtight. It is based on some fallacious assumptions in the first case, but it is also administered by human beings who will pretty regularly make mistakes or, worse, intentionally fudge the science. Having the right lawyer can make a big difference.

The bottom line is that Kansas DUI is big business. It is big business for the courts that make money from these cases. It is big business for the police departments who get grant money and equipment given to them by government agencies and MADD. It is big business for tow companies, bondsmen, the ignition interlock providers and other peripheral service providers. It is also big business for lawyers. There are a lot of pretenders out there. If you want the best Kansas DUI lawyer you need to do more than look at the Yellow Pages or go to the first website that you see. Please re-read my previous posts on How to Hire the Best Kansas DUI Attorney. If there is a way to beat your Kansas DUI, you will need someone with knowledge, skills and experience - not the cheapest guy you can find.

CEO of MADD Becomes CEO of NHTSA

The chief executive of Mothers Against Drunk Driving (MADD) has just been named by President Obama to be the head of the National Highway Transportation Administration (NHTSA). NHTSA is the agency that oversees highway safety and came up with such DUI enforcement "tools" as field sobriety testing. The man's name is Chuck Hurley and he is, by all acounts, an anti-alcohol zealot and proponent of heavy regulation by the government. Under his watch, MADD attempted to make it a law the every car sold in America had an ignition interlock device installed when it came off of the sales lot.

I suppose it was only a matter of time before NHTSA and MADD merged into one entity, since they have been playing out of the same book for so many years. Even so, it ought to seem a little odd that the head of one of the major special interest groups attempting to influence agency policy is then made the head of the agency. Only in America would this not be considered totally corrupt.

You can read rants about this nomination at the Agitator Blog. Suffice it to say, under MADD's watch, you can expect our country's highway safety agency to be very busy crafting regulations to impose on all of the states for more stringent enforcement for seatbelt, DUI, ignition interlock, teenage driving and other issues concerning th motoring public. He would also like to lower the legal limit to .04 for DUI.

Kansas DUI Laws Getting Harsher (Again)

Not a year goes by any more when the Kansas Legislature doesn't make the Kansas DUI Laws stiffer and harsher. This news was released today:

TOPEKA – The governor on Monday signed into law a bill aimed at fixing the state’s drunken driving laws and strengthening penalties for drivers who repeatedly drive while intoxicated.

Gov. Kathleen Sebelius, a Democrat, signed Senate substitute for House Bill 2096, which creates the Kansas DUI Commissio to review the state’s laws, compare them with other states and suggest changes.

The commission, which will include legislators, judges, prosecutors and law enforcement officers, will submit an initial report by the start of the 2010 Legislative session and a final report by the 2011 session.

The new law would require county or district attorneys to check with the Division of Motor Vehicles regarding offenders’ history of driving under the influence and to check their criminal history with the Kansas Bureau of Investigation before proceeding with charges. That change will go into effect July 1.

Among other provisions, the proposal would also create stiffer penalties for people convicted for a third time of drunken driving and require they participate in an alcohol and drug abuse prevention program. That change would take place July 1, 2010.

The good news is that the advice to create a Kansas DUI Commission to take a look at what is working and what is not working appears to have been taken to heart. Of course, this report indicates that the panel will include only legislators, prosecutors and police officers. So, there is no one who will give a defense or civil liberties perspective. My guess is that this Commission will ultimately recommend a smogasboard of some of the worst of the DUI laws that we see around the nation and will result in several steps backward, not forward. I would love to be wrong about that.

Of course, the legislature couldn't let the bill creating the Kansas DUI Commission go by without also creating harsher penalties for current Kansas DUI cases while the Commission is doing its investigation and making its recommendations. Another story from today:

TOPEKA A third or fourth conviction for driving under the influence in Kansas will mean more jail time starting next year.
Gov. Kathleen Sebelius signed legislation imposing the tougher penalty on Monday . It takes effect in July 2010.

The penalty for a fourth DUI conviction will be at least 180 days in jail, double the current minimum, and a fine of $2,500. The time served before being eligible for a work release program goes from four days to six days.

For a third conviction, an offender will face a minimum of 90 days and at least a $1,500 fine. The offender would be eligible for work release after two days in jail.

So, they have doubled the length of incarceration for 4th time DUI offenders and made it so that 3rd time Kansas DUI offenders can no longer be incarcerated in their homes (house arrest - which the offender pays for) but will have to be housed in a jail facility and then be released from jail to go to work (work release).

Again, every year that goes by the laws get harsher and harsher. Unfortunately, no one has paused to recognize that despite the annual revising of the Kansas DUI laws, the problem gets absolutely no better. Maybe that is what the Kansas DUI Commission will ultimately figure out and some common sense will begin to prevail in this area of the law. Don't count on it.

The constant push toward stiffer and stiffer fines and incarceration, as well as greater driver's license suspensions, only illustrates how important it is to find the best DUI lawyer in Kansas that you can possibly find to investigate and defend your case in every allegation. The days of a first time DUI being no big deal and something that an individual could handle on his or her own, without an attorney, are long gone. Every single DUI charge counts and will result in very harsh ramifications on an individual's quality of life and ability to make a living. Every single DUI charge will come back to haunt you later in some way, especially if you are ever accused again. The first DUI is the one to fight, to avoid being sucked in to the ever deepening black hole that has become Kansas DUI law.

Vampires?

Here is a story appropriate for tax day, April 15. A county in Missouri is planning a "No Refusal" checkpoint this weekend. Here is a story. A "No Refusal" checklane means that if you get stopped in the checklane and then refuse to take the goverment's breath test, they will hold you down and forcefully take your blood from you. So, there will be no refusals. The way they do this is by having judges on hand to authorize search warrants on the spot. Kansas DUI law does not allow for forced blood draws (yet) unless someone has been in a car accident resulting in death or a serious injury. Missouri DUI law, though, does allow forced blood draws if a judge authorizes it. So, law enforcement has co-opted some judges to assist them in making this quick and easy on the side of the road. This is something that has been happening in other states for the last couple of years.

This is interesting since, as I have blogged about ad nauseum, checklanes are about the least effective means of finding drunk drivers. Hundreds of people are stopped, and there may be a handful of people who get arrested (of course, some of those arrested will later be determined to be innocent). A DUI checklane in Kansas City, MO last weekend stopped 321 cars and netted 7 arrests for DUI. That is a success rate of about 2% which is about average. The other 98% of the public who are not breaking the law will now not only be stopped by the government without cause, but be confronted there by judges with pens at the ready to authorize the police to bend you over the car hood and pull your blood. It could be a TV show, "When Governments Attack!" Seriously, this makes me understand a lot of "tea parties" that were happening today protesting"big government". This is our tax dollars a work.

New Offices

I haven't posted to this blog for awhile. Things have been super busy at our firm. I personally have had a lot of DUI trials in this first quarter of the year and have a bunch coming in the next few weeks. On top of that, our firm has moved to a new location in Corporate Woods in Overland Park, Kansas which we are very excited about. Our lawyers enjoyed fiercely defending Kansas DUI cases from our Olathe location for the last 13 years, but have made the move to Overland Park to be closer to a lot of the jurisdictions in which we practice and to be more centrally located for our clients. We are right off of Interstate 435 and Antioch Road and very easy to find. As we continued to grow and gain more success in DUI, traffic, and other areas of criminal defense, change was necessary and inevitable. We are very pleased to be able to give our clients even better service and accessibility, while providing the same quality legal service, from our new location. I will have a lot to say on this blog about the state of the Kansas DUI/DWI law, as well as the national stories and trends, in the upcoming months. Meanwhile you can find Norton Hare, LLC at our new location:

Norton Hare, LLC
9 Corporate Woods
9200 Indian Creek Parkway, Suite 660
Overland Park, Kansas 66210
(913) 906-9633
(913) 9069985 Fax

and, as always, at www.nortonhare.com.

More Changes to DUI Laws in Kansas

Another legislative session, another attempt to kick around the political football of Kansas DUI law. The Kansas City Star ran a front page story on Sunday about the bills in the Kansas legislature to change to the definition of DUI in Kansas, make the penalties harsher (again), and to change the length of Kansas driver's license suspensions. All of this in the face of a report by the Kansas Substance Abuse Policy Board calling for a 2 year study into the current Kansas DUI laws before a complete overhaul should occur. As the Board points out, Kansas DUI laws are "dysfunctional". The problem is, as they note, that the laws are a Frankenstein's monster which have been continually tinkered with and added to year after year, resulting in a law that is confusing, ineffectual and full of inconsistency. While the legislature cuts programs that assist in providing substance abuse treatment, they would like to increase the jail time for persons convicted of DUI.

Legislators love to talk tough and claim to be "tough on crime", especially when it comes to DUI, yet they repeatedly fail to recognize that the DUI numbers are going up, the problem is not getting better, and the harsher laws are only resulting in more repeat offenses, more people driving without licenses or insurance, and serious social costs that we cannot afford.

The Substance Abuse Policy Board has it right and the legislators have it wrong. Kansas DUI law is dysfunctional, not because DUI is not a problem, but because jail time and lengthy driver's license suspensions are not the answer. An alcoholic who commits a repeat offense DUI will go into jail an alcoholic. When he or she is released, whether it be after one day or one year, they will come out an alcoholic. Hitting the streets with no driver's license, no job, likely no family, and no support is not a recipe for sobriety and driving safety. It is exactly the opposite. The Kansas legislature should heed the advice of the people concerned with solving this societal problem and leave Kansas DUI laws alone for awhile. They should study what is working and what is not and then try to legislate, not from a place of political expediancy, but from a place of wisdom and genuine concern for the safety of our roads and due process of law. Let's hope that wiser heads prevail in this debate.

How to Tell If You Are Over the Limit

The local news channel in Lawrence, Kansas did a little story on ways to determine whether you have consumed enough alcohol to be over the legal limit. You can see the video here. It discusses the personal breath alcohol testing devices that people can buy, the machines in bars that are supposed to tell you your BAC, and it shows the van that the Lawrence Police Department has which houses a mobile Intoxilyzer 8000 for DUI breath testing out in the field.

One of the problems with Kansas DUI laws is that no one can accurately estimate when they have had enough alcohol to be over the legal limit. That is why it is better to not drink anything before you drive a car. The police machines are not accurate, but some gizmo you buy off of the internet, or pay a couple of quarters for in a bar is not likely to be accurate either. The websites you can visit that will tell you how much a person can drink, given a specific weight, are helpful guides but you cannot depend on them to keep you out of legal trouble. Your level of impairment depends on your metabolism, what you have eaten recently, the amount of sleep you've had and a host of other biological factors. The machine that the police use for court in Kansas DUI cases is based on averages and cannot factor in the biological differences in human beings like body temperature, breath temperature, partition ratio, hematocrit levels, and the presence of compounds which may be mistaken for alcohol in the breath. So, who knows what anyone will blow when the police demand that you do so? People who are not impaired will blow over the limit and people who are impaired may blow under it.

The legal limit for DUI in Kansas is .08 grams of alcohol per 210 liters of breath. Think about that for a minute. One little M&M candy weighs about a gram. Picture 210 one-liter soda pop bottles, or a 55 gallon drum. Now, if less than a gram out of 55 gallons of your breath is alcohol, you are busted. One-thousanth of a gram, think about how little that is, can make an enormous difference as to whether you are DUI or lose your driving privileges for a long time. If you blow .149 on your first Kansas DUI, you lose your license for 30 days. If you blow one-thousanth of a gram more, .150, you lose it for a full year followed by one year of blowing into an ignition interlock device. That is a big difference based on a microscopic amount of alcohol.

Your freedom, your job and a whole lot of your money are on the line every time you subject yourself to this crapshoot. The best way to minimize your exposure to getting charged with a DUI in Kansas or Missouri, whether you are in fact guilty or innocent, is to not drink, at all, before you drive. Designate a driver, get a taxi or other ride TO the bar so no one will be tempted to drive when it is time to leave, and otherwise take precautions. You cannot know what your blood alcohol content is, you cannot really trust the websites or personal BAC machines, and you have no idea what the police device is going to say. Your BAC is always a moving target and the most microscopic amount of alcohol can make a big difference in the quality of your life. You don't want to trust your life or freedom to any of these machines.

Field Drug Tests Don't Work - Neither Do Breath Tests

A story in USA Today tells of the many people who are being arrested, handcuffed and taken to jail because innocent items in their possession test positive for narcotics in a field test. One couple in the story was arrested at an airport and had their baby taken away from them because the chocolate in their luggage came up positive for hashish. Another man in the story sat in jail for 2 months because his deodorant came up positive for cocaine. This is crazy.

What happens in your typical drug case is that when suspected drugs are found, the person in possession of them is immediately charged with a crime. The contraband is sent off to the crime lab where it is tested to confirm that the confiscated material is actually the illegal drug it appears to be. These lab tests, in Kansas drug possession cases, usually take 6 to 8 weeks, sometimes longer. While the confirmation test at the lab is pending, the person from whom the suspected drugs were taken is in jail, or out on bond dealing with the criminal charge against him or her. A lawyer must be obtained by the person and there will usually be a court appearance or two before the lab results come back.

Most people know what a bag of marijuana looks like (a green, leafy substance), and what cocaine looks like (white powder), and what most other drugs look like (pills, rocks, etc.). Usually, there is some paraphernalia involved (pipes, lighters, steel wool, rolling papers) when drugs are found. Why would anyone get arrested for possession of chocolate? It doesn't look or smell like hashish. Why would anyone get arrested for deodorant? It does not look like cocaine in any way, shape or form. Other people in the story report being arrested for possession of soap that comes up positive for GHB, a date rape drug. One couple's soap-related arrests have cost them $20,000.00 in legal bills!

Common sense seems to have left the building in these cases. But, that is the problem with "tests". They are given the imprimatur of "science" when they are not actually good science. Once the test gives a "result", the blinders come on and chocolate becomes hashish, deoderant becomes cocaine. It is crazy, but obviously a real phenomenon. This problem is not limited to drug cases. In Kansas DUI and Missouri DWI cases, people are routinely taken to jail based on totally unscientific field tests, including preliminary breath tests (PBT) which are screening tests done out on the side of the road before a person is arrested. These PBT's are not specific for alcohol (in other words, other chemical compounds can be mistaken by the machine for alcohol), are often not calibrated or otherwise tested for accuracy, and are usually not operated according to the requirements of the product manufacturer. In fact, they are so unreliable, the Kansas legislature has made them inadmissible in Kansas DUI cases for most purposes. But, they are enough to get you arrested and taken to the jail.

The breath test that is admissible, the Intoxilizer 8000 in Kansas, raises similar problems. When a person blows into the machine and it spits out a number over the Kansas legal limit of .08, everyone assumes the person is guilty and the blinders come on. This presumption is hard to overcome. However, the Kansas breath test is more like someone's deodorant testing positive for cocaine than a laboratory test conducted according to scientific principles. The machine is fallible. Everyday products like white bread will give a false positive on the machine for acohol (and no one knows why). You should see what happens with mouthwash, chewing tobacco, asthma inhalers and other innocent products! Other innocent physiological issues like body temperature can cause a person who is not intoxicated to submit a test over the legal limit. Blood tests for alcohol are like the confirmation tests done at the lab on the drugs. They are much more scientific and accurate, if done properly. However, blood tests in Kansas DUI cases are infrequent.

Of course, it costs money to get a blood test and it takes the same 6 to 8 weeks for the results in most Kansas cases. But, if we are going to put people in jail for significant periods of time, and take away driver's licenses (and therefore livelihoods) for long periods of time, as well as cause people to otherwise lose their freedom and live with the stigma of a DUI, shouldn't we be basing those decisions on the most reliable and most accurate tests available? Is the cheapiest and easiest test, yet least reliable test, the right way to go? At least Kansas ought to join the overwhelming majority of the states which require 2 breath tests. By doing 2 breath tests a few minutes apart, there is at least a better chance that the one test wasn't due to a malfunction of the machine, or some innocent product, or some other fluke. Even Santa Claus checks his list twice! The carpenter's motto is "measure twice, cut once." Getting two breath tests doesn't cost anything more. The powers that be just don't want to do it because it would expose the fallacy of the machine when it spits out two wildly different results taken only minutes apart. Duplicate testing is not just a good idea. It is a scientific requirement for accuracy and precision. Otherwise, these cheap and easy tests turn deodorant into cocaine and sober people into criminals.

Administrative Hearings in California are Rigged

No real shocker, but Los Angeles area DUI defense attorney, Lawrence Taylor, has received a secret memo circulated to the administrative hearing officers in California taking them to task for dismissing administrative hearings against accused drivers. The memo directs them to ignore their independent judgment and rule the way the government wants them to. They are threatened with visits from their supervisors. This is not unique to California, but something I have seen in Kansas DUI administrative hearing proceedings. Hearing officers are sometimes taken to task by the Department of Revenue for dismissing cases and told to change their policies to ensure that drivers get suspended in the future. Or, a hearing officer will wait to make a decision on an issue until the Department of Revenue tells them how they want the hearing officer to rule. While it would seem that a fair and impartial judge of the facts and law would preside over these very important cases, don't count on it.

More Fudging of Breath Test Accuracy

Just so that no one accuses me of exaggeration when I alleged in a recent post that, unfortunately, there is frequent cheating, fudging and falsification when it comes to the quality control and accuracy calibration of breath testing devices, here is another example of it. This story comes from Houston, Texas where the person in charge of inspecting and assuring the accuracy of the Intoxilyzer breath test machine has been found to have been faking her reports. Thousands of DUI cases have been thrown into question. Many people have already been found guilty and gone to jail based on these false results. Lives, families and careers have almost certainly been derailed because of DUI convictions and driver's license suspensions that were based, at least in part, on breath test results from these untrustworthy machines.

It is not just me offended by this sort of fraud. From the story:

The news was troubling for the police departments whose work might be undone."It's sickening," said Clute Police Chief Mark Wicker. "It's very disturbing."

Troy McKinney, a Houston lawyer who specializes in DWI appeals, said this is especially tragic given that there are already questions about the science of these tests and a DWI conviction can be career changing for people.

As I said before in the posts here and here, this is not an indictment of all law enforcement or all breath tests, but it does reinforce what I also last posted here, that Kansas DUI lawyers most never take for granted that the science is up to snuff. It always must be looked into because this does happen far too often.

UPDATE: The breath test technician has been charged with a felony for faking the breath test calibration and accuracy tests. The story is here. And here.

Why We Fight Kansas DUI and Missouri DWI Cases

I have represented a lot of people who were actually innocent of the crimes of which they were accused. I have also represented a lot of people who were guilty. Many of them were acquitted and set free due to the work that I did on their behalves. People ask me all the time how it is that I can defend someone who I know, or at least think, is guilty. It is easy, because I firmly believe that everyone deserves a vigorous defense, and that our legal system and our democracy are made stronger when every cog in the wheel is working the way it is supposed to. Aggressive defense attorneys make for more thorough police officers, more attentive prosecutors and more learned judges, and vice versa. If each person does his or her job properly the system works and justice is done. If any one of these important people falls down on the job, the system is far weaker for it and the wrong result can occur.

There was an essay on NPR's "This I Believe" a few days ago on why and how criminal defense attorneys do what they do. I would encourage everyone to listen to it or read it. It may change your perspective on this issue.

We fight every Kansas DUI case and Missouri DWI case because criminal defense attorneys are the only buffer between the government and the people under their accusation. Someone has to stand up for the people who find themselves up against all of the resources of the government. We fight to make sure that the stop of our clients' vehicles was legal, that the field balancing tests were given according to the national standards required by the federal government, and that the breath test was given according to required regulations, on a machine that is in proper working condition and being maintained in accordance with a sound quality control program. If defense attorneys did not flip over every rock and look under it, if they did not challenge the police and state agency procedures, if they did not require that the government prove their case above and beyond all reasonable doubt, our country's constitution would cease to protect us and our system of justice would be seriously eroded. Every single Kansas DUI and Missouri DWI must be investigated and challenged where necessary, there can be no exceptions. That is why we fight.

Fudging Breathalyzer Accuracy

This story from Miami is just another example of how a dishonest law enforcement officer can cover for the inaccuracies of the breath test machine causing breath test results to be questionable in thousands of cases. I hesitate to post these kinds of stories, although frankly there is at least one every month or two. I do not want to appear to be anti-law enforcement. The majority of police officers are dedicated, hard-working people doing a tough job and doing it with integrity. However, given that my last post concerned cheating on the breath test, I thought I would highlight this story to demonstrate that these sorts of issues are not as rare as they should be.

In Miami, FL, the person in charge of the Intoxilyzer 8000 (the same machine used in Kansas DUI cases) for the Miami-Dade Police Department was required to run certain tests on the machine on a regular basis to check and demonstrate that the machine was operating properly. Just about every state has such a quality control program. The Intoxilyzer 8000 has a modem on it and every test run on the machine in Florida is dowloaded to a central repository where its results can be monitored for accuracy and compliance with the quality control program.

The officer in the story was running the quality control tests on the machine, but whenever the machine would start to malfunction, she would just unplug the machine so that the test was aborted, erased and never reported via the download as required. Thus the state authorities could never see that the machine was malfunctioning and the police department could keep on giving breath tests to hapless, unknowing drivers. No doubt, over the 18 month period that this was happening, thousands of people were convicted of a serious crime, put in jail and had their licenses revoked, all based on a machine that was not working properly and was not in compliance with the quality control program for the state. The officer was fired but it remains to be seen what will happen with all of those cases.

As I have said before, I have seen this sort of thing in Kansas DUI cases, as well. It can happen anywhere. Again, most officers are honest and play by the rules, but it only takes one to start fudging breathalyzer results and call into question thousands of breath tests. This is one of the reasons that hiring the best Kansas DUI attorney you can find is so important. A DUI defense attorney needs to be aggressive in hunting down the documents concerning the machine that your breath was tested on, getting all of the maintenance logs, testing logs and calibration logs, and any and all repair records.

I recently discovered that when the Kansas Department of Health and Environment changed the regulations for breath testing in Kansas on March 14, 2008, they failed to re-certify their Intoxilyzer machines. They failed to require that any of the police departments follow the new rules that they issued! When I raised it in a trial, their response was to just print up new certificates with the new regulation numbers and mail them out to each agency, despite the fact that no one had followed the regulations. I raised it in a trial on September 11, 2008. On September 12, 2008 the KDHE issued the new certificates and BACKDATED them to March 14, 2008, in an effort to conceal this massive problem. What? Anyway, there will likely be more on this issue later. Suffice it to say, these breath tests are supposed to be scientific and accurate. Someone has to apply strict scrutiny to these breath testing programs to watch out for this type of fudging.

Ohio Police Caught Cheating on DUI Exam

This story is kind of old news, but I am just getting around to discussing it. In July of 2008 the Ohio Inspector General released a report revealing his findings after an investigation into a cheating scandal in which Ohio law enforcement officers, including high ranking sergeants of the Highway Patrol were caught cheating on the recertification test for the state's breath testing machine. Each year in Ohio police officers have to take a short test to make sure that they have the minimum knowledge and training to be administering breath tests. The test is extremely easy to pass. However, a group was caught using a cheat sheet during the test. In fact, the cheating was so rampant that it was well known among the law enforcement community. You should really check this story out because it is pretty scary. There is a link to the Inspector General's report.

The story is significant, not because it says anything about police officers in general (they are human, too), but because it exposes an ugly truth about the "science" of DUI. Kansas DUI cases are all about the so-called science. Driving behaviors are said to carry statistical significance, field sobriety tests are said to be scientifically validated to determine impairment, and the breath test machine is based on all sorts of scientific principles including infrared spectroscopy, Henry's Law, human partition ratio, etc. The area of Drug Recognition Evaluation (DRE) is all based on medical diagnosis using blood pressure, pupil size, skin and muscle quality and the Horizontal Gaze Nystagmus (HGN) test. The science is not all it is cracked up to be in the first place but, in addition, occasionally there is cheating.

The problem is, of course, that police officers are not scientists and they are not hired to make medical diagnoses. Yet, they are expected to employ all of these techniques out on the street. Entire DUI cases rise and fall on the findings, opinions, training and experience of Kansas DUI officers. A person can be convicted solely because of what number a machine spits out (the Intoxilyzer 8000 in Kansas). Who is looking to see if they have received the proper training, are employing the latest technology, and employing it properly? Kansas DUI defense attorneys had better be.

Kansas DUI officers don't even have to take a test to get recertified each year on the breath test machine. All they have to do is run a couple of tests in front of another officer or someone from the Kansas Dept. of Health and Environment without screwing it up. It is not too difficult. In fact, the regulations concerning quality control of the breath test devices used in Kansas are laughably unscientific and minimal. Yet, our law firm has uncovered cheating and document falsification in a local law enforcement agency concerning the accuracy of a breath test machine even very recently. It resulted in a lot of breath tests being thrown out. This may not be the norm, but it does happen.

People are arrested and convicted every day in Kansas for DUI. They lose their driving privileges, they lose their freedom, they lose their jobs and they live the rest of their lives as a convicted criminal. It is hard to have any confidence in those harsh results being justified if the science is being rigged or there has been cheating for certification. Every case demands scrutiny. Every certification requires verfication. A good Kansas DUI attorney has to flip over every single rock and look underneath it to determine whether the science is being fudged, or the paperwork is out of order, or there are any other suspicious issues that might undermine confidence in the case. This egregious episode from Ohio is just a reminder why every case needs serious attention and serious investigation. The best Kansas DUI attorneys do it in every case, every time.

2007 NHTSA Statistics Released

I blogged last year about the fact that, despite the increasing harshness of Kansas DUI laws over the past few years, Kansas had one of the highest increases in drunk driving related fatalities in the entire nation. I had been pondering whether we were getting any return for the massive investment Kansas was making in DUI enforcement and whether these harsher laws were making us any safer. The 2006 statistics seemed to indicate "no". NHTSA has just released the 2007 statistics on traffic fatalities. Once again, Kansas is not looking so good. There were less deaths from automobile crashes this year in Kansas, but more allegedly involved alcohol impaired drivers. In other words, the Kansas DUI problem appears to be getting worse for the second year in a row, despite the evermore draconian DUI laws in Kansas, including the 2007 laws treating those who blow .150 or higher more harshly.

Basically, the numbers are this:

In 2006, 468 people died on the roads in Kansas. 125 of them are alleged to have been over .08. That is 26.7%

In 2007, 416 people died on the roads in Kansas. 114 of them are alleged to have been over .08. That is 27.4%

No matter how you slice it, the problem is not getting better. My previous post lays out why this is, so I won't repeat myself here. Needless to say, the laws that are causing more people to lose their jobs, lose their families, and drive without insurance, among other social problems, have thus far not been doing us any good in terms of making the roads safer.

Watch Your Myspace and Facebook Pages

More and more I have seen prosecutors in Kansas DUI cases, and other criminal cases, going to a person's Myspace or Facebook profiles to get dirt on them. Many young people have these pages which include pictures of them drinking (often underage), advertising alcohol, or otherwise bragging about his or her ability to drink or use drugs. Believe me, the cops aren't kidding, "anything you say can and will be used against you." Take this recent DUI case, featured here, in which a young man got a prison sentence instead of probation because his facebook showed him partying in a jail costume at a Halloween party two weeks after a crash in which he seriously hurt another person. The prosecutor created a powerpoint slideshow of these photos and successfully questioned whether the kid was remorseful. Remember the young lady who Elliot Spitzer was caught with, and how her Myspace page was splashed all over the news the next day? If you are involved in a serious criminal case, or even a run of the mill Kansas DUI case, you should give some serious thought to taking down such pages. As I have mentioned before, getting charged with a DUI is a good time to do some reflecting on your life, whether or not you are actually guilty. Giving a judge or prosecutor more reasons to doubt your sobriety, and remorse could come back to haunt you later.

Field "Sobriety" Tests are Ridiculous

Here is another article that shows why. This driver was "weaving" and failed "field sobriety tests", as is very common in Kansas DUI cases. Then, he blew .000 and took and passed a urine test. Oops! It still took a month to get the case dropped. The driver was terrified and is now, justifiably, angry. Please, read the article below:

BRADENTON, FLORIDA — If there is a lucky four-digit lottery number in DUI cases, it is this: a 0.000 on the blood-alcohol breath test.

Gary Shuchat hit quadruple zeros, but that was not enough to win his freedom after a traffic stop in May.
A Manatee County sheriff’s deputy said Shuchat failed field sobriety tests, even though Shuchat showed no obvious signs of impairment. He was not slurring words. His eyes were fine. There was no odor of alcohol.
Shuchat said the deputy thought he was on cocaine.
Authorities got a urine sample from Shuchat, which came back clean a few weeks ago. No drugs. No alcohol. A state prosecutor dropped the case.

“Actual innocence,” said Shuchat’s attorney, Mark Lipinski, who called the 0.000 on the breath test a rarity in drunken-driving cases.Florida drivers are considered intoxicated at 0.08 and above.

Shuchat, 54, an executive at a lumber company in Canada, will not let his arrest slide as a mere inconvenience or a story to tell about American police. He wants to sue the Sheriff’s Office, calling his arrest in Bradenton a terrifying experience. “This was the most degrading and dehumanizing thing I have ever been through,” Shuchat said. “This was crazy. I was not drunk.”

Last year, out of the 1,008 breath tests given by Manatee deputies, 23 people had results of 0.000.
DUI cases are inherently problematic because each driver is different. Some faces are naturally red. Some speech is naturally slurred.

A bigger person may have a harder time doing field-sobriety tests, such as walking a straight line, than a person who is slender.

In the legal defense community, field sobriety tests are dubbed “abnormal” exercises used to test “normal” abilities.

Authorities who are challenged in lawsuits routinely say that police act in good faith, that a stop and a detention were performed within the scope of the officer’s duties.

Deputies ask drivers about any physical problems that may prevent them from completing field-sobriety exercises. Shuchat weighs more than 250 pounds and is 6 feet, 1 inch tall.He said he did not have any physical or medical ailments.

If a person is arrested after field-sobriety tests, deputies are not going to free the person based on 0.000 on the breath test, Capt. William Dixon of the Manatee County Sheriff’s Office said. The driver is detained, and presumed impaired, before the breath test is given.
Deputies have discretion in using a portable breath test in cases in which the deputy thinks the person may be impaired, but not enough to support a criminal DUI case. The driver will not be arrested. The results are not allowed in court. The portable breath test is meant to compel the person to find another way home.

It was not immediately known why Deputy Lee Harrington did not use a portable breath test on Shuchat. Whether Harrington had one that night, or could not get one, has not been determined.

Dixon said it was in Harrington’s discretion to arrest Shuchat on suspicion of DUI.

Another deputy, Michael Lesselroth, said Shuchat was weaving in a lane in the 2300 block of 53rd Avenue West at about 11 p.m. the night he was arrested.
“How do you weave in a lane? I’ve never heard of that before,” Shuchat said in an interview.
Lesselroth said he swerved in his patrol car to avoid a collision with Shuchat, who was driving a rented Dodge Durango. Shuchat, the deputy said, “swayed” in the driver’s seat of his car.

The deputy called Harrington to conduct a DUI examination.

Shuchat said he had a glass of wine during dinner at a Sarasota steakhouse, a statement that Harrington reported in his write-up.

Harrington asked Shuchat to walk on a piece of tape, heel to toe. Shuchat had trouble with his balance and stepped off the line, according to a report.
Shuchat was told to use his eyes to follow a light in front of him. Deputies said he moved his head to track the light.

Shuchat was arrested. At a sheriff’s station, he breath came came up 0.000. Harrington thought it was a mistake, Shuchat recalled, and told him to blow harder.
“I’m blowing my brains out,” Shuchat said. Shuchat again blew 0.000.

Shuchat told Harrington to free him.
But the deputy said he could not leave. Shuchat was ordered to give urine for analysis.
Authorities say a person who is under the influence of a drug and who has not been drinking will register 0.000 on the breath test.

Shuchat spent several hours in jail before he posted $500 bail. A prosecutor last month said there was insufficient evidence against Shuchat.
“Charlie Chan used to say, ‘Never hunt rabbit with a dead dog,’” Lipinski said. “That’s what they are doing here: a DUI case with triple zeros and clean urine.”

Should You Drink With Your Kids?

Time magazine has a great article about teen drinking and how to best teach kids to be responsible with alcohol. The article seems to conclude that it is better for teenagers to get some exposure to alcohol in a supervised setting before they are 21 years old. The recent hysteria over teen drinking has driven kids to drink in clandestine locations where they are less likely to get help if they get into trouble with alcohol. More and more are ending up in the emergency room because they have no experience with alcohol and no experienced person there to guide them.

Kansas MIP laws allow children 17 years of age to consume alcohol at home with their parent or legal guardian. This law is not well known. Given the "all or nothing" approach to alcohol that has been the trend in the last ten years, including a strong emphasis on making teen drinking a legal problem as opposed to a personal or family problem, most parents are mortified that they will be arrested or otherwise reported to the authorities for child abuse or something if they allow their child to drink, at all. Yet, as the article points out, you may be teaching your child some great lessons in responsibility by allowing limited alcohol use with the family. Alcohol is less likely to be seen as a means to rebel, or as some magic potion that will make you more mature, and kids that drink with their family generally tend to have less problems with alcohol. It certainly bears thinking about.

Here are some excerpts from the article:

So the data indicate there are fewer young drinkers, but a greater proportion of them are hard-core drinkers. Parents have helped create this paradox. Many parents seem torn between two competing impulses: officially, most say in surveys that they oppose any drinking by those under 21. But unofficially many also seem to think kids will be kids...
***
But there is a better way. At first it sounds a little nutty, but you might consider drinking with your kids. Incongruously, the way to produce fewer problem drinkers is to create more drinkers overall--that is, to begin to create a culture in which alcohol is not an alluring risk but part of quotidian family life. Of course, that's a mostly European approach to alcohol, but there's reason to think it could work here. And it may be the best way to solve the binge-drinking problem.
***
In a way, the new strategy worked: fewer kids drink now because it's harder for them to obtain alcohol. But as psychologist Stanton Peele writes in his 2007 book Addiction-Proof Your Child (one of his 10 books on addiction), "When alcohol is presented as impossibly dangerous, it becomes alluring as a 'forbidden fruit' ... The choice between abstinence and excess is not a good one to force on children."
***
there's evidence that drinking with your kids--not buying them alcohol for a party but actually drinking with them at home--is a good way to teach responsible drinking behavior.
***
But another result was surprising: if kids actually drank with their parents, they were about half as likely to say they had drunk alcohol in the past month and about one-third as likely to say they had had five or more drinks in a row in the previous two weeks. As Foley and her colleagues wrote in a 2004 Journal of Adolescent Health paper, "Drinking with parents appears to have a protective effect on general drinking trends."
***
You give them sips as smaller kids, and you don't make a big deal about it," says Peele, 62. "Around 16, give them a glass of wine. A second glass probably doesn't make sense, but making hard-and-fast rules creates the sense that alcohol is some magical potion."
***
In other words, the social-host law appears to have broken up big house parties into many smaller ones. Possibly because fewer adults are present, the parties are less supervised, and more kids are getting so drunk they end up in the ER.
***
Because alcohol is harder to obtain now than in the '70s and '80s, more kids are delaying their first drink. But most people will drink before 21, and it's a reasonable goal for parents to be there when it happens. "What if a kid has never had alcohol and drinks for the first time at 21?" asks Peele, the author of Addiction-Proof Your Child. "If they haven't developed a capacity to regulate themselves with alcohol at all, you can be headed for trouble."

Effectiveness of DUI Checkpoints Questioned

There was a large, front-page article in the Kansas City Star on July 5, 2008, which went into some depth about the ineffectiveness of DUI checklanes. The article noted that all metro KC checklanes averaged a DUI arrest rate of 1.6%. The article notes that DUI saturation patrols have an arrest rate of 6.1%. Checklanes are costly, time-consuming and ineffective. This is something I have written about over and over again here, but it is good to see that the mainstream press is covering this issue. As also noted in the article, states that do not allow checklanes have seen their alcohol-related fatalities decline over the last 10 years, while half of the states that do allow checklanes have seen an increase in alcohol-related fatalities.

Missouri BWI Catches Up with DWI

Another new Missouri DWI law that just passed lowers the legal limit for boating under the influence (BWI) to .08, which makes the limit the same for driving a vehicle under the influence. The story in the KC Star about it is here. I don't know if Kansas DUI laws have changed on this, but for years the legal limit for driving a carwas .08 but the legal limit for flying an airplane under the influence of alcohol was .10. So, you could be more intoxicated in a plane than in a car! Again, I have not looked recently, but I don't recall the Kansas DUI laws changing on that. Anyway, a lot of things can go wrong on the water so it is important to designate a driver of a boat just like it is important to designate the driver of a car. I hope everyone had a happy and safe Fourth of July.

MIssouri Passes Interlock Law

Missouri DWI/DUI law has long provided for ignition interlock devices for persons convicted of a second or subsequent DWI. However, the enforcement of the interlock requirement was the responsibility of the courts and, frankly, it was spotty at best. Today, Missouri passed a new ignition interlock device that will place the responsibility for enforcing this penalty on the Missouri Director of Revenue. In other words, in order to get your driver's license back, DWI offenders will have to prove to the DMV that he or she has placed this device on his or her car. This is similar to the DUI law in Kansas and many other states. This will require a lot more people to outift their cars with the interlock and will result in a lot more red tape to get a license reinstated after a DWI. It will result in a lot more suspensions and driving while suspended, too. There is a national push by MADD to make ignition interlock a requirement in every DUI case, even first time offenses. In fact, they would like to make them standard on all vehicles, regardless of who the owner is or whether he or she has ever had a DUI. The governor's press release is here.