12/27/10

Former police officer states that Intoxilyzer 8000 resulted in erroneous breath tests for years

This is the same breath test machine used in Johnson County.  If you were charged with DUI in Olathe, Overland Park, Mission, Leawood, Lenexa, or elsewhere, your results may not be accurate. 

The DUI lawyers in our law office understand that the science behind breath test machines like the Intoxilyzer 8000 is flawed and the machines themselves are junk.  Our Johnson County DUI attorneys scan the calibration and testing records in every Johnson County DUI case to look for errors that may turn the case in our clients favor.  This article is a good reason why:

WASHINGTON - A man hired to supervise the Breathalyzer unit of the D.C. Police Department is blowing the whistle on what he says are a decade of questionable test results.

Writing in a memo to the D.C. Attorney General he said the officers running the program rarely, if ever, performed accuracy tests on the machines used to measure the blood-alcohol content of drivers suspected of D-W-I.

Two and a half months after taking over the Breath Alcohol Testing Program, Ilmar Paegle, a retired U.S. Park Police officer, wrote a detailed four page memo in which he claims the protocol to ensure the machines were properly calibrated has not been followed since at least 2000. That’s a claim the D.C. Attorney General Office calls just an "opinion."

But Paegle lays out his case in a memo now in the court file of a man convicted of D-W-I. That man wants a new trial.

In the memo addressed to Assistant Attorney General Kimberly Brown, Paegle wrote,
"From my inspection of the instrument files (the machines) have never been checked for accuracy even though an accuracy test is the only legal requirement a breath testing instrument must meet in the District of Columbia."

Paegle continued, "The calibration has to be verified by accuracy tests, and these legally mandated tests of (the machines) apparently have never been done."

David Benowitz represents Sultan Epaye, the man who wants a new trial.

"The ramifications are enormous,” said Benowitz in an interview Tuesday outside D.C. Superior Court. "It goes back for years, there are plenty of people who served jail time based on what may very well be false tests or inaccurate tests, the civil liability could be huge, it just has a huge impact on the integrity of the entire criminal justice system."

Included in the court case jacket are internal D.C. Police documents showing no accuracy tests were performed on the machines after they were calibrated. Those records go back to at least 2006.

But Sarah Branch, the Prosecutor in the case, takes issue with Paegle's claims, writing in a motion for dismissal of conviction, "Mr. Paegle's opinion is based on a review of documents that were created and kept by his predecessor, Officer Kelvin King, the former Chemical Testing Program Manager for MPD. Therefore, Mr. Paegle's opinion consists of nothing more than conjecture and assumptions."

"We strenuously disagree with that characterization," said Benowitz, "It's clear what Mr. Paegle's is saying is based on fact."

In the memo, Paegle also criticizes D.C. Police for the lack of oversight and supervision.

Back in February the Attorney General admitted his office was looking into dozens, if not hundreds of cases, after learning from Paegle the machines were improperly calibrated in the fall of 2008 and were not tested for accuracy.

What Paegle is saying today raises questions about test results as far back as 2000 or longer.

Paegle declined to comment, as did D.C. Police Chief Cathy Lanier.

Attorney General Peter Nickles referred us to the motion filed in court.

 

 

12/15/10

More on the Kansas DUI commission and its effect on Johnson County DUI prosecutions and legal representation:

It appears that there will be a huge change in Kansas DUI law.  The DUI attorneys in our law office will keep track of the developments in the legislature...  Thanks to the Topeka Capital Journal for the following article:

12/14/10

Kansas DUI law to change dramatically:

These changes will affect nearly all aspects of DUI lawyer's Johnson County and Kansas DUI representation

Our sources in Topeka tell us that the Kansas legislature is about to make a number of changes to Kansas driving under the influence law (DUI/DWI law) that will have a dramatic effect on Johnson County drunk driving cases and lawyers.  We believe that the following changes are going to be announced:

1.  DUI refusals will be criminalized, with penalties as harsh as those for actually being convicted of driving under the influence.  This would be a huge change in DUI law and would mean that, in almost every instance, a driver would be much better off by giving a breath/blood/urine sample as opposed to refusing

2.  The crime of aggravated battery - DUI would be added, with no intent being required for a conviction.   

3.  Maximum sentence for felony driving under the influence convictions would go up significantly, earning a space "on the grid," with associated prison time with the Kansas Department of Corrections.

4/17/10

Drivers often tell our traffic attorneys that the police officers who stopped them for speeding or some other traffic infraction were rude or aggressive.  We understand.  It takes a special type of personality to write traffic tickets in Johnson County all day long, and a small percentage of police officers handle it poorly.  This article makes that point:

(CBS/ AP)  An Overland Park man who flashed an obscene gesture at an Olathe police officer after getting a ticket is getting rewarded for his behavior.

The city of Olathe has settled a civil rights complaint filed by Scott Schaper of Overland Park. He was ticketed in September for disorderly conduct for flipping off an officer who had given him a ticket for running a stop sign.

The city of Olathe last week agreed that its insurance company would pay Schaper $4,000, with another $1,000 for the American Civil Liberties Union of Kansas and Western Missouri.

Olathe police also must train its officers that they are required to take such verbal abuse.

The Kansas City Star reports that Doug Bonney, legal director for the ACLU chapter, says Schaper reacted angrily because he was taking his children to school and the traffic stop caused them to cry.

Olathe fared better than Pittsburgh did in a similar case of angry gesticulating.

The Pennsylvania city paid $10,000 to a citizen ticketed for giving a police officer the finger and $40,000 more to the ACLU for legal work, reported the Star.

In that case, the citizen flipped off a Pittsburgh officer who had told him to stop giving the finger to another driver.

Prairie Village's police chief, Wes Jordan, the outgoing president of an association of Johnson County police chiefs and the sheriff, said of such abuse: "We have to just swallow it." 

12/10/10

DUI checkpoints are increasing throughout Kansas, including Johnson County

Our DUI law firm's lawyers have taken several checkpoint cases to trial and currently have one on appeal to the Kansas Court of Appeals.

WICHITA, Kansas– Police announced it advance that a DUI checkpoint would happen Thursday nigh. But even with announcing it ahead of time, they still landed eight DUI arrests.

“There were approximately 35 officers that participated between the Wichita Police Department and the Kansas Highway Patrol,” said Lt. Doug Nolte of the DUI checkpoint late Thursday night.

And they needed that many officers for a high-profile reminder this time of year to not drink and drive.

The latest DUI check lane was a massive undertaking as officers stopped everyone on W. Kellogg at Meridian to check for drunk drivers. And they got results.

“There were 922 vehicles that were stopped, 103 citations were issued,” said Lt. Nolte. “There were eight people arrested for DUI during the check lane.”

With eight arrested on a weeknight for DUI – one with a blood alcohol level twice the legal limit -- officers say the need to remind Kansans to not drink and drive is still strong.

One study out offers a sobering statistic as Kansas ranks in the top quarter of states for the percentage of the population that drove under the influence over the past year.

So with the holidays here – a time when alcohol use is on the rise – officers want to remind people to think twice before getting behind the wheel.

Officers conducting the checkpoint made a variety of arrests for everything from driving with a suspended license to outstanding warrants and they even made an arrest for someone crashing in the check lane.

“One of the DUI arrests early on in the check lane was involved in an accident where they hit another vehicle as they were preparing to stop for the check lane,” said Lt. Nolte.

The Kansas Highway Patrol, Sedgwick County Sheriff’s Department and Wichita Police Department are not ruling out another check lane before the holidays to make sure the roads are safer.

11/23/10

Kansas Court of Appeals overturns a Kansas DUI conviction and rules that drivers have no duty to "prove a negative."

Case also upholds precedent holding that a police officer does not have to observe any traffic infractions to make a DUI arrest in Johnson County or elsewhere in Kansas.

Under K.S.A. 2006 Supp. 8-1567(a)(3), evidence of incapacity to safely drive avehicle can be established through sobriety tests and other means. Observed erratic driving is not a requirement for conviction of driving while under the influence of
alcohol.

A person's refusal to submit to blood alcohol testing shall be admissible in evidence against such person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.

In order for a defendant to effectively waive his or her constitutional right to a jury trial, two conditions must be met: (1) the trial court must advise the defendant of his or her right to a jury trial, and (2) the defendant must waive the right personally, either in writing or in open court for the record. Waiver will not be presumed upon a silent record.

Unlike the definitive burden necessary to prove an existing fact, the burden toprove a negative fact does not require a defendant to irrefutably demonstrate the fact does not exist; it requires only that the defendant do what is ordinary for one who bears a clear
and convincing burden of proof, i.e., show that his or her version of the facts is highly probable.

On January 19, 2007, at approximately 11:06 p.m., Deputy Justin Crafton of the Sedgwick County Sheriff's Office was in his vehicle driving on a street in Wichita when he saw another vehicle traveling in the opposite direction with its fog lights turned on, but
not its headlights. According to Crafton, it was dark outside and the roads were "somewhat icy" and covered in slush. Crafton turned his vehicle around and eventually pulled over the vehicle. When Crafton made contact with the driver, later identified as Duncan, Crafton smelled "a very strong odor of alcoholic beverage" emanating from Duncan. Crafton also observed that Duncan's eyes were bloodshot and watery and that his speech was slurred.

As part of a "divided attention test" (a test where an officer asks a suspected impaired driver to complete two tasks at once—the theory being that an impaired person will not remember to complete both tasks), Crafton asked Duncan for his driver's license
and proof of insurance, and Duncan only remembered to give Crafton his driver's license. Crafton asked Duncan where he was coming from, and Duncan told him that he was coming from a liquor store. Crafton then asked Duncan to exit the vehicle in order to
conduct field sobriety testing. Crafton noticed that when Duncan exited the vehicle, he was "unsteady."
Crafton asked Duncan to perform the walk-and-turn and the one-leg-stand tests.

Crafton stated that during the "demonstration and explanation phase" of the walk-and turn test—where subjects are required to stand with their right foot directly in front of their left in a heel-to-toe position as they listen to instructions—Duncan lost his balance
several times while Crafton was explaining the test to him. Crafton stated that Duncan eventually gave up standing heel-to-toe and simply stood with his feet side by side. During the testing phase, Duncan failed to walk in a straight line, used his arms for
balance, and took an incorrect number of steps. During the one-leg-stand test, Duncan used his arms for balance and failed to stand on one foot throughout the duration of the test. Crafton believed Duncan's performances on both tests indicated that Duncan was
impaired.

Crafton ultimately arrested Duncan for DUI and searched his car, finding an opened bottle of "MD 20/20" containing half an inch of liquid in the bottle and an unopened bottle of Bud Light. Crafton then transported Duncan to the Sedgwick County Detention Facility where, after providing Duncan with the applicable written and oral statutory notices, Crafton asked Duncan if he would take an evidentiary breath test.

Duncan refused to submit to testing. Subsequently, Crafton issued a citation to Duncan for DUI (second offense) and failure to have his headlights illuminated when required. Duncan's case proceeded to a bench trial where Crafton testified to the abovementioned
facts. Furthermore, the State introduced into evidence a DVD recording of Duncan's performance on the field sobriety tests. This recording is not included in the record on appeal, but according to the district court, the DVD showed that Duncan clearly had problems with performing the walk-and-turn and one-leg-stand tests.

At the bench trial, Duncan took the witness stand and admitted to drinking "about two cans of beer" 45 minutes prior to being pulled over. Duncan claimed, however, that the beer did not affect his ability to drive a vehicle. Duncan admitted to driving without his headlights turned on, but stated that the street on which Crafton saw him driving was well lit and that the dash lights of his vehicle were turned on, making Duncan believe that his headlights were illuminated. When he turned his vehicle onto another street, Duncan
stated that he realized his headlights were off and quickly turned them on.

With regard to the field sobriety tests that Crafton had him perform, Duncan claimed that the coldness and the snow and ice on the streets caused him to be nervous, thereby affecting his performance on the walk-and-turn and one-leg-stand tests. During cross-examination, Duncan stated that he knew if he submitted to breath testing and the results showed that he was not intoxicated, there would be no adverse consequences to his license, and he would be allowed to go home. With regard to the bottle of MD 20/20
found in his car, Duncan admitted that it was a type of wine but claimed he did not drink any of it that night.
After hearing all the evidence and arguments of counsel, as well as viewing the DVD showing Duncan perform the field sobriety tests, the district court found Duncan guilty of DUI and failing to have his headlights illuminated when required. The district
court sentenced Duncan to an underlying jail sentence of 12 months and placed him on probation for 1 year. Prior to being placed on probation, the district court ordered Duncan to first serve 2 days in jail and then 8 days under house arrest. Finally, the district court
ordered Duncan to pay fines totaling $1,560 ($1,500 for the DUI and $60 for failure to have his headlights illuminated).

10/10/10

A great case regarding Kansas driving under the influence law was released by the Kansas Supreme Court:

Case reinforces the right to rescind a breath test refusal - if you originally refuse the breath test, you may be able to request the test later...

The Kansas Supreme Court ruled on the case of McIntosh v. Kan.Dept. of Revenue, No. 101878 (Kan. 2010), two weeks ago, which involved the issue of whether and under what circumstances someone who has refused to take a chemical test can change their mind. The court ruled that because the purpose of of the state's implied consent scheme is to encourage testing whenever possible, DUI defendants should be given an opportunity to reconsider a test refusal.

The high court began its analysis by noting that the most important case on this issue was Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984). In Standish, a police officer arrested Mr. Standish for DUI and asked him if he would take a breath test. Mr. Standish refused, saying he would not do so until he had spoken with his lawyer. The officer told him he had no right to an attorney at that time and took Mr. Standish to jail. Mr. Standish asked a guard if he could still take the test about 15 minutes later and was told that it was too late. The court in that case ruled that Mr. Standish should have been given a second chance because the testing system is designed to protect the public and ensure reliable results and there should be encouraged.

The Standish court went on to say that a second chance must be given if five elements are met. Specifically, the court wrote that a person must be given a second chance to take the test if they request to take it: (1) within a very short time after refusing, (2) when a test would still be accurate, (3) when testing equipment is still available, (4) when it will not result in substantial inconvenience or expense to the police, and (5) when the individual requesting a test has been in custody of the arresting officer and under observation since refusing.

As a result, the Kansas Supreme Court ruled that the district court was correct and Mr. McIntosh should have been given another chance to take the test when he asked for one. The court therefore ordered his license suspension to be reversed because the "refusal" for which it was imposed was invalid.

9/18/10

Kansas Court of Appeals releases Henke v. Kansas Department of Revenue regarding administrative hearings for driver's license suspensions resulting from driving under the influence arrests

Opinion reinforces the case law holding that a driver has the burden of proof in an administrative hearing resulting from a Johnson County, Kansas DUI arrest...

In Henke v. Kansas Department of Revenue, the Kansas Court of Appeals ruled that, pursuant to K.S.A. 2008 Supp. 8-1020(h)(3)(F), an individual holding a driver's license who challenges an officer's certification of a blood test failure may raise issues concerning whether the blood sample was collected in a reliable way. Such issues would include whether the person who drew the blood sample from the individual holding the driver's license was qualified to do so under K.S.A. 2008 Supp. 8-1001(c).

Although the review of a driver's license suspension is by trial de novo before the district court, under K.S.A. 2008 Supp. 8-1020(q) and K.S.A. 77-621(a)(1), the individual holding the driver's license bears the initial evidentiary burden of showing why the driver's license suspension should be set aside.

After arresting Henke for DUI in May 2008, the officer transported Henke to the police station, where a person unknown to Henke drew a sample of his blood at thedirection of the arresting officer. Later testing of Henke's blood sample by a forensic toxicologist with the Kansas Bureau of Investigation (KBI) confirmed an alcohol concentration of .191.

As a result, Henke was served in August 2008 with the arresting officer'scertification that Henke had failed his blood test and a notice that his driving privileges would be suspended in 30 days unless he timely requested a hearing. Henke retained counsel, who timely requested an administrative hearing with the Kansas Department of Revenue (KDR) to challenge the license suspension.

In December 2008, an administrative hearing officer (AHO) conducted a hearing by telephone conference call, after which she entered an order affirming the administrative action to suspend Henke's driving privileges. No transcript of that hearing appears in the record. The AHO's handwritten notes, however, are in the record and reflect that Henke raised two issues at the hearing before the AHO: (1) the officer lacked reasonable suspicion to request testing and (2) the lab technician who drew Henke's blood—identified in the notes as "Michael Gamboa—lab tech?"—was not qualified to do so. Henke timely petitioned the district court for review of the AHO's order, identifying both issues he raised before the AHO as the issues to be addressed before the district court.

At the beginning of the April 17, 2009, hearing before the district court, Henke'scounsel clarified that he was only pursuing the issue of whether the individual who drew Henke's blood was statutorily qualified to do so. See K.S.A. 2008 Supp. 8-1001(c) (listing the medical professionals who are qualified to draw blood for purposes of alcohol and drug testing). A dispute ensued about who bore the burden of proof on that issue. The district court agreed with the KDR and ruled Henke bore the burden of making a prima facie showing that the person who drew his blood was not statutorily qualified. Henke's counsel then proffered that the only evidence he would present on that issue would be Henke's testimony that his blood was drawn at the law enforcement center, as opposed to a hospital, and that Henke did not know the person who drew his blood or that person's qualifications. The KDR did not dispute Henke's proffer and moved to admit the blood test results and certificate of analysis. Henke's counsel did not object to admission of those documents, but he suggested those documents were not relevant to his issue of whether the individual was qualified to draw Henke's blood or that the blood was drawn in a proper manner.

The district court found that Henke's proffer was insufficient to show that the person who drew his blood was not qualified to do so under the statute. Thus, the district court affirmed the administrative order suspending Henke's driving privileges. Henke appealed.

8/15/10

Prohibition - MADD's hidden agenda

San Francisco, CA.  July 27 — Mothers Against Drunk Driving (MADD)  is suffering from mission creep. A victim of its own success, the non-profit group is now pursuing Prohibitionist anti-alcohol policies – such as calling for alcohol detectors in all cars – instead of focusing on its original goal of reducing drunk driving deaths.

“The public needs to realize that MADD isn’t the same group it was 20 years ago,” says American Beverage Institute (ABI) Managing Director Sarah Longwell.

MADD founder Candy Lightner agrees. The non-profit group she started in 1980 after her daughter was killed by a drunk driver “has become far more neo-prohibitionist than I had ever wanted or envisioned … I didn’t start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving.”

Part of the problem is MADD’s prior success in bringing the issue of drunk driving to the public’s attention.

“The biggest problem in reducing drunk driving fatalities now consists of the hard core of alcoholic drivers who repeatedly drive with BAC’s of .15 or higher,” says Dr. David Hanson, professor emeritus at the State University of New York/Potsdam. “But MADD has now decided to go after social drinkers and to eliminate driving after drinking any amount of alcohol beverage. This change appears to reflect the influence of a growing neo-prohibitionist movement within MADD.”

The change in focus has been accompanied by a change in the way MADD spends donor funds. The American Institute of Philanthropy recently downgraded MADD to a “D” in its 2010 Charity Guide and Watchdog Report, citing the group’s diminished focus on education and victim services in favor of fundraising and anti-drinking activism.

According to the AIP, MADD spent nearly double the average amount on fundraising, leaving just a little more than half of its revenue for programs. In 2008, despite declining revenue, two-thirds of its  budget – almost $30 million – was spent on staff salaries (which increased 56 percent).  Meanwhile, spending on community programs dropped 17 percent. It may be even lower than that, as MADD reportedly counts payments to professional fundraisers as charitable work, claiming they help educate potential donors.

Charity Navigator, which rates the effectiveness of various charitable organizations, also gave MADD just one out of four possible stars.

 

1/26/10

Those intoxilyzers (breath test machines) aren't always accurate...

Good driving under the influence attorneys will always explore ways to challenge the breathalyzer results...

Wash., DC.  June 10 – Nearly 400 people in Washington, D.C., have been convicted of driving while intoxicated based on faulty breath tests that calculated blood alcohol levels about 20 percent higher than the reality.

D.C. Attorney General Peter Nickles said the problem was caused when a police officer set improper baseline levels on the machines, the Washington Post reports. Nickles’ office is contacting the convicted drivers and their lawyers.

About 200 of those convicted spent some time in jail, the story says. At least one lawsuit has already been filed based on the revelation.

Nickles’ office launched an investigation after an outside consultant indicated a possible inaccuracy.

12/5/09

It turns out that texting while driving is as dangerous as driving under the influence of alcohol...

DUI lawyers should keep these studies in mind when representing clients.

CNET News, Dec. 22 — It’s no surprise that driving while texting (DWT) falls under the category of driving while stupid (DWS).

It’s even been compared with driving under the influence (DUI). Still, anywhere from one-third to 60 percent of teens admit to texting behind the wheel.

Yet another study–this one out of the University of Utah–reinforces the fact that driving while texting is incredibly dangerous (PDF).

Drivers who text are about six times more likely to crash than those paying full attention to the road, this study says, and their reaction times are on average three times slower than the reaction times of drivers talking on cell phones.

According to the study’s results published in the Human Factors journal:

Drivers apparently attempt to divide attention between a phone conversation and driving, adjusting the processing priority of the two activities depending on task demands. This requires drivers to switch their attention from one task to the other. When such attention-switching occurs as drivers compose, read, or receive a text, their overall reaction times are substantially slower than when they’re engaged in a phone conversation."

So if DWT is more dangerous than DUI, why is DWT legal in some states and subject to a $50 fine in others?  Why is DUI considered morally repugnant and treated like a felony?  Why is it illegal to even have alcohol over .08% in your body — even if you’re not under the influence?  Why are politicians stumbling over each other to pass ever-harsher DUI laws — but doing nothing about driving while texting?

What’s the difference between the two, besides DWT being more dangerous?

Oh, right…DUI involves alcohol.  And the prohibitionists at MADD.

 

11/7/2009

Fatal traffic accident in a residential neighborhood demonstrates the danger of high speed and intoxication:

The staff and attorneys in our Olathe law firm recognize that most Johnson County DUI cases are the result of drivers who were driving correctly, but were simply over the legal limit.  Whether you love it or hate it, .08 is the law in Kansas (and most other states).  We can all agree, however, that auto accidents, especially fatal ones, caused by intoxicated drivers should be subject to harsh penalties.  The following article demonstrates this:

A 19-year-old Kansas City, Kansas, woman is held on charges following the hit and run of a pedestrian in the Overland Park area.

Sadly, Sandra Carocari, 70, was gardening in her front yard when she was struck by Jill Conaghan. Carocari apparently was thrown across the yard, dying very quickly at the scene. The accident occurred July 18, but Conaghan was charged yesterday. She was held on $100,000 bond. Her attorney asked for a reduction in the bond and for her release to a treatment facility - both requests were denied.

Conaghan was allegedly under the influence of a medication at the time of the accident, not alcohol. However, she had several charges of consumption by a minor in the past, including charges just weeks before the accident. The judge who initially set her bond handed the next bond hearing over to another judge in Johnson County. That judge upheld the ruling, saying her history showed a frequent and persistent problem.

The accident occurred around 11:30AM. The local community had been complaining about reckless driving on the road for some time, saying speeding was a big problem in the area. The arrest report does not specifically address Conaghan's rate of speed. The charges listed are involuntary manslaughter DUI, leaving the scene, failure to maintain a lane and driving on a sidewalk.

While Conaghan left the scene initially, she did return shortly after. She went home to get her parents who returned with her.

 

9/1/09

Our firm's lawyers try to stress to everyone how tough DUI/DWI enforcement
in Johnson County is...

Eric Warfield was sentenced to one to three years in a Nebraska prison resulting from his 4th DUI offense. Warfield was a cornerback for the Kansas City Chiefs for 8 years and a star for the Nebraska Cornhuskers from 1995-97.

Warfield received his sentence on Monday from Lancaster County District Judge Jodi Nelson. The judge removed Warfield's driving privilege for 15 years. The guilty plea was for DUI and refusing a chemical test. 

Warfield's prior convictions were not in the state of Wisconsin. Each occurred in Johnson County, Kansas, between 2001 and 2004. During this period he was still a member of the Kansas City Chiefs. He served a suspension from the NFL as a result of the incident. 

Until recently most DUI convictions were not traceable from state to state. This was on a civil record, or motor vehicle report, at least. With the advent of increased technology that allows states to share information, more individuals are held accountable in one state for actions in another.

Some argue the reciprocity between states is a good thing to protect the roadways. It also prevents people from simply moving if they approach the felony DUI limit in one state.

Others question the validity of reciprocity because a person is convicted under a state's specific laws, not federal laws. This means the same person could be found not guilty in one state and guilty in another. Many question whether national standards must be set if a person is to be held accountable for the same offense in two different states.

 

The Missouri state Senate on Thursday unanimously approved legislation that would impose a minor restriction on the use of red light cameras. Although municipalities have no legal authorization to use the devices, red light cameras have nonetheless spread throughout the state over the past three years with the help of influential political lobbyists. Senate Bill 58 would finally grant municipalities that authorization, protecting them from legal challenge -- with a string attached that could cut the programs' profit by half.

State Senator Jim Lembke (R-St. Louis), who had earlier pushed for a complete ban on automated ticketing machines, attached language to Senate Bill 58 requiring red light cameras to photograph and positively identify drivers. This is the same restriction that currently applies in states like Arizona and California where photo tickets are accompanied by license points.

The effect on revenue can be significant as drivers whose faces are obscured cannot be fined. In San Francisco, for example, the cameras generated 55,133 potential tickets in 2001, but 25,650 of these were dumped because the photos failed to show a clear image of the driver or a front license plate was missing.

Senate Bill 58 also offers a special provision protecting motorcyclists who are faced with a red light that fails to change at an otherwise empty intersection. If "the traffic control signal continues to show a red light for an unreasonable time" the motorcyclist is free to proceed with caution after stopping.

The legislation also creates a new ticket for drivers who use text messaging while behind the wheel and targets the speed trap town of Foristell by banning it and any other town with fewer than one thousand residents from earning thirty-five percent of its municipal revenue from speeding tickets issued on an interstate highway.

Among other provisions, the bill would prohibit free roadside memorials and instead charge a substantial fee to the immediate families of those killed in drunk driving accidents who want to put up a sign that reads "Drunk driving victim" with the victim's initials and the phrase "who's next?"

To become law, the measure must be passed by the state House and signed by Governor Jay Nixon (D). A copy of the legislation is available in a 1.5mb PDF file at the source link below.

Thanks to "TheNewspaper.com" for this article

4/24/09

The United States Supreme Court Rules Many Police Searches of Cars are Unconstitutional in Arizona v. Gant

Our law firm's traffic lawyers often notice that police officers in Johnson County attempt to use traffic stops as a reason to "toss" or search our clients' vehicles, in a sort of fishing expedition.  These searches are highly intrusive, and frankly, are a waste of our clients' time.  

Regardless of the Constitutionality of such searches, they often leave drivers with messy or even damaged cars because the searching police officers seldom put things back the way they found them.

It will be interesting to see how this ruling effects Kansas Courts.  To be sure, future searches will not be allowed, but searches happening before today's ruling may or may not be subject to suppression.  I personally believe that these searches will be allowed under the "good faith" exception to the exclusionary rule. 

US Supreme Court lays down rule forbidding warrantless car searches except in cases of officer safety or evidence protection.

The US Supreme Court on Tuesday narrowed the permissible scope of warrantless automobile searches. In a 5-4 decision the high court upheld a 2007 Arizona Supreme Court ruling that cited the 1969 California v. Chimel US Supreme Court case to conclude that police had to obtain a warrant before searching a car in the absence of any threat to officer safety or ability of the suspect to destroy evidence (view Arizona opinion). The Arizona ruling went against nationwide trend diminishing the protections against unwarranted searches.

"Lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel," Justice John Paul Stevens wrote for the majority, citing former Justice Sandra Day O'Connor.

The case at hand spent nearly a decade going back and forth through the Arizona courts. It began on August 25, 1999 when two Tuscon police officers received a "tip" that drug activity took place at a certain location. Police went there and questioned Rodney Gant who happened to open the door of the house that was under suspicion. After leaving, the officers looked up Gant's record and found that there was an outstanding warrant for his arrest for driving under a suspended license.

The officers waited for Gant to return to the house and arrested him after he parked his car safely in the driveway. Gant was placed in the back of a squad car within minutes and without incident. Police then proceeded to search Gant's car where they found a small plastic bag containing cocaine.

A majority lead by Justice Stevens found the search of Gant's car unconstitutional.

"The state seriously undervalues the privacy interests at stake," Stevens wrote. "Although we have recognized that a motorist's privacy interest in his vehicle is less substantial than in his home, the former interest is nevertheless important and deserving of constitutional protection. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment -- the concern about giving police officers unbridled discretion to rummage at will among a person's private effects."

The high court did leave police with a broad prospect for conducting warrantless searches but closed the door to searches based solely on traffic violations.

"Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle," Stevens wrote. "In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence."

Less than a day after the decision was released, the Michigan State Police issued guidance to officers on how to get around the supreme court's new limitations.

"While this ruling will impact how searches of vehicles incident to arrest are conducted, officers may still conduct a full search of a person incident to a lawful arrest," the state police bulletin explained. "In addition, officers may search vehicles using other exceptions to the warrant requirement (e.g. probable cause, inventory, consent)."

A copy of the decision is available in a 260k PDF file at the source link below.

Source: Arizona v. Gant (US Supreme Court, 4/21/2009)

 

3/20/09

Our law firm's traffic lawyers can "fix" most moving violations issued by Johnson County cities such as Olathe, Overland Park, Lenexa, Shawnee, Gardner, Prairie Village, Mission Hills, or Leawood (part 2)

This is an update to my last post about Johnson County municipalities ticket amendment processes and how our traffic attorneys can help keep these tickets off of your driving record, insuring that your car insurance rates don't go up.

Prairie Village speeding and traffic ticket amendments -

Prairie Village is not a large city, but it does employ a significant number of police officers who are highly trained in traffic enforcement.  These officers may be found along State Line (especially around 95th street) checking drivers' speed with radar or laser guns.  Our traffic lawyers can amend most Prairie Village speeding tickets, as well as most other Prairie Village violations such as red light, stop sign, or lane violations.

Lenexa speeding and traffic amendments -

Lenexa is a large municipality which stretches over a long distance.  Lenexa police officers issue thousands of traffic tickets each year, with the majority of these being for speeding. Our attorneys can turn most Lenexa tickets into parking tickets which will not affect your driving record or your insurance rates. 

Lenexa officers are also highly trained DUI/DWI enforcement officers and they will look for impairment indicators in most night time traffic stops.  Consequently, Lenexa police charge hundreds of drivers with driving under the influence each year.

Shawnee traffic and speeding ticket amendments -

Our traffic attorneys can amend, "fix," or divert most Shawnee municipal citations, including speeding tickets (most often issued), red light tickets, stop sign violations, and lane violations.  These amendments will serve to keep your driving record clean and to insure that your auto insurance rates don't rise due to the Shawnee ticket.

Gardner traffic and speeding ticket amendments -

Gardner Department of Public Safety officers issue thousands of speeding, red light, stop sign, and lane change violation tickets each year.  Our traffic attorneys can amend most Gardner tickets to non-moving violations.

 

1/21/09

Most Johnson County cities will allow our traffic attorneys to amend speeding, red light, stop sign, and other traffic citations to non-moving violations

We often field calls from drivers who have been stopped and ticketed by a police officer in Johnson County.  These drivers are usually wanting to know what the consequences of the ticket will be (beyond the fines, of course) and if we can help.  The good news is that our traffic lawyers can amend or fix most Johnson County speeding or traffic citations.  Click on the links below to learn more:

Overland Park traffic or speeding ticket amendments -

Overland Park prosecutors will allow our lawyers to turn moving violations into "illegal parking" tickets that do not negatively affect drivers license histories or insurance rates.  Overland Park limits amendments to one per year, although our Overland Park traffic lawyers may be able to work around this policy in certain instances.  

Olathe traffic and speeding ticket amendments -

Olathe has liberal amendment policies which allow our Olathe traffic lawyers to fix most speeding and traffic tickets, including those that take place in school and construction zones.  Olathe is one of the few jurisdictions that will discuss these amendments with our attorneys.  Olathe also charges hundreds of drivers with driving under the influence each year.

Mission traffic and speeding ticket amendments -

The City of Mission is not large, but the City's police officers issue a large number of tickets.  Mission police officers are highly trained traffic enforcement officers and they focus on speeding and driving under the influence, especially at night.  The Mission Municipal Prosecutors are very reasonable and will allow our Mission traffic attorneys to amend or "fix" most moving violations.

Leawood speeding and traffic citation amendments -

The City of Leawood issues thousands of speeding, red light, stop sign, lane violation, and other traffic tickets each year.  Leawood police officers usually focus their attention on residential areas with low (20 or 25mph) speed limits or along 435.  Our firm's Leawood traffic ticket attorneys can amend most of these tickets and them into non-moving violations.

1/7/09

What can your law office's Johnson County DUI lawyers do to help me with my first time Johnson County DUI case?

Drivers charged with driving under the influence (DUI/DWI) in Johnson County, KS have three options if they have a clean driving record (meaning no prior DUI charges, diversions, or convictions):

1.  Trial - You can have a trial on the matter.  If you are acquitted, then you will have no further consequences from the criminal DUI case, although your driver's license could still be suspended if you lose the administrative hearing, or if you neglect to request an administrative hearing.

2.   Guilty plea - You can have your Johnson County DUI lawyer negotiate an advantageous plea agreement.  Although the maximum sentence for a first time DUI charge is 6 months in jail, our law firm's DUI attorneys can often negotiate a sentence that is much shorter.

3.  Diversion - A Johnson County DUI diversion is essentially a contract between you and the prosecutor in your case.  For example if you have been charged with DUI in Overland Park, one of our DUI lawyers would negotiate a DUI diversion with the Overland Park prosecutor.  If you complete the diversion successfully, then the Overland Park prosecutor will dismiss the charge against you.  You can learn more about DUI charges in Overland Park and DUI diversions at our website.

12/30/08:

Do traffic cameras really increase safety or are they simply entrepreneurial policing?

We have had a number of Kansas City and Johnson County drivers contact us about red light cameras which may be installed in Kansas City, Missouri.  We believe that these cameras, like other types of traffic "enforcement" in Johnson County, KS and Kansas City, MO are often more about revenue generation than safety. The cities of Overland Park and Olathe have both discussed the installation of red light cameras, but nothing has been passed.

The Virginia Transportation Research Council today released a report expanding upon earlier research into the safety effects of red light cameras in Virginia. The new study, funded by the Virginia Department of Transportation and the Federal Highway Administration, provided a city-by-city assessment that showed significant increases in the number of injuries and accidents at intersections employing photo enforcement.

The change in the frequency of injury accidents varied widely among jurisdictions -- down 5 percent in one but up between 6 and 89 percent in all others. Even within a jurisdiction some intersections fared better than others. In Fairfax County, for example, the total number of crashes increased at every intersection with a camera, except for one -- Route 50 and Fair Ridge. VDOT increased the duration of the yellow light from 4 seconds to 5.5 seconds on August 12, 1998. Research by the Texas Transportation Institute confirmed that longer yellows yield significant accident reductions. Overall, the data in the VTRC report painted a grim picture consistent with prior, independent investigations.

"The cameras were associated with an increase in total crashes. Arlington and Fairfax County saw significant increases, Falls Church and Vienna saw non significant increases, and Fairfax City saw a non-significant decrease."

Although it is now widely accepted that red light cameras are associated with increases in the number of rear end collisions, the VTRC report did not solely attribute the overall increase in accidents and injuries to this type of collision. Angle collisions also increased.

"Cameras were associated with an increase of between 31 percent and 54 percent for rear-end crashes overall," the report found. "The association of the cameras with angle crashes differed among jurisdictions, although a preponderance of test results suggested an increase."

Contrary to industry claims, this was not a temporary phenomenon.

"The cameras were not associated with a decrease in rear-end crashes over time after the initial increase that followed camera installation," the report found.

Red light cameras were authorized in Virginia between 1995 and 2005. After a two year battle with municipal lobbyists and the insurance industry, the Virginia state legislature re-authorized the use of red light cameras. The law took effect July 1. The full text of the study is available in a 1mb PDF file at the source link below.

Key Statistic:

City	Rear End	Angle	Injury	Total
Arlington	+139%	+53%	+89%	+65%
Fairfax City	+10%	-35%	-5%	-7%
Fairfax County	+40%	+8%	+6%	+23%
Falls Church	+136%	-15%	+79%	+38%
Vienna	+64%	-6%	+59%	+25%
Average	+42%	+20%	+18%	+29%

The Impact of Red Light Cameras on Crashes in Virginia (Virginia Transportation Research Council, 7/5/2007)

12/19/08:

Should I take a breathalyzer test if requested by a Johnson County law enforcement officer?

Many people call and ask our DUI lawyers whether they should have taken a breath test.  That question cannot be easily answered - it depends on the facts and your driving history, so we cannot offer "general" advice.  However, Kansas administrative suspension statute is a good place to start. Our Johnson County DUI lawyers can explain the intricacies of Kansas driver's license suspensions and the administrative hearings that must be requested within 14 days of the date of your arrest.

 

KSA 8-1014, the Kansas Statute dealing with driver’s license suspensions:

Suspension and restriction of driving privileges for test refusal, test failure or alcohol or drug-related conviction; increased penalties for blood or breath alcohol concentration of .15 or greater; ignition interlock device. (a) Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person refuses a test, the division, pursuant to K.S.A. 8-1002, and amendments thereto, shall:

      (1)   On the person's 1st occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

      (2)   on the person's 2nd occurrence, suspend the person's driving privileges for two years;

      (3)   on the person's 3rd occurrence, suspend the person's driving privileges for three years;

      (4)   on the person's 4th occurrence, suspend the person's driving privileges for 10 years; and

      (5)   on the person's 5th or subsequent occurrence, revoke the person's driving privileges permanently.

      (b) (1)   Except as provided by subsections (c) and (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state, the division shall:

      (A)   On the person's 1st occurrence, suspend the person's driving privileges for 30 days, then restrict the person's driving privileges as provided by K.S.A. 8-1015, and amendments thereto, for an additional 330 days;

      (B)   on the person's 2nd, 3rd or 4th occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device; and

      (C)   on the person's 5th or subsequent occurrence, driving privileges shall be permanently revoked.

      (2)   Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state and the person's blood or breath alcohol concentration is .15 or greater, the division shall:

      (A)   On the person's 1st occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

      (B)   on the person's 2nd occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for two years to driving only a motor vehicle equipped with an ignition interlock device;

      (C)   on the person's 3rd occurrence, suspend the person's driving privileges for one year and at the end of the suspension restrict the person's driving privileges for three years to driving only a motor vehicle equipped with an ignition interlock device;

      (D)   on the person's 4th occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for four years to driving only a motor vehicle equipped with an ignition interlock device; and

      (E)   on the person's 5th or subsequent occurrence, driving privileges shall be permanently revoked.

      (3)   Whenever a person's driving privileges have been restricted to driving only a motor vehicle equipped with an ignition interlock device, proof of the installation of such device, for the entire restriction period, shall be provided to the division before the person's driving privileges are fully reinstated.

      (c)   Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person who is less than 21 years of age fails a test or has an alcohol or drug-related conviction in this state, the division shall:

      (1)   On the person's 1st occurrence, suspend the person's driving privileges for one year. If the person's blood or breath alcohol concentration is .15 or greater, the division shall at the end of the suspension, restrict the person's driving privileges for 1 year to driving only a motor vehicle equipped with an ignition interlock device;

      (2)   on the person's 2nd and subsequent occurrences, penalties shall be imposed pursuant to subsection (b).

      (d)   Whenever the division is notified by an alcohol and drug safety action program that a person has failed to complete any alcohol and drug safety action education or treatment program ordered by a court for a conviction of a violation of K.S.A. 8-1567, and amendments thereto, the division shall suspend the person's driving privileges until the division receives notice of the person's completion of such program.

      (e)   Except as provided in K.S.A. 8-2,142, and amendments thereto, if a person's driving privileges are subject to suspension pursuant to this section for a test refusal, test failure or alcohol or drug-related conviction arising from the same arrest, the period of such suspension shall not exceed the longest applicable period authorized by subsection (a), (b) or (c), and such suspension periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of such suspension as authorized by subsection (a), (b) or (c), such person shall receive credit for any period of time for which such person's driving privileges were suspended while awaiting any hearing or final order authorized by this act.

      If a person's driving privileges are subject to restriction pursuant to this section for a test failure or alcohol or drug-related conviction arising from the same arrest, the restriction periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of restriction, the person shall receive credit for any period of suspension imposed for a test refusal arising from the same arrest.

      (f)   If the division has taken action under subsection (a) for a test refusal or under subsection (b) or (c) for a test failure and such action is stayed pursuant to K.S.A. 8-259, and amendments thereto, or if temporary driving privileges are issued pursuant to K.S.A. 8-1020, and amendments thereto, the stay or temporary driving privileges shall not prevent the division from taking the action required by subsection (b) or (c) for an alcohol or drug-related conviction.

      (g)   Upon restricting a person's driving privileges pursuant to this section, the division shall issue a copy of the order imposing the restrictions which is required to be carried by the person at any time the person is operating a motor vehicle on the highways of this state.

      (h)   Any person whose license is restricted to operating only a motor vehicle with an ignition interlock device installed may operate an employer's vehicle without an ignition interlock device installed during normal business activities, provided that the person does not partly or entirely own or control the employer's vehicle or business.

 

12/12/08:

I thought it would be a good idea to start this blog with Kansas' DUI statute.  This statute is the starting point for all of our Johnson County DUI lawyers' case analysis.

 

KSA 8-1567  - The Kansas DUI Statute

8-1567.   Driving under influence of alcohol or drugs; blood alcohol concentration; penalties. (a) No person shall operate or attempt to operate any vehicle within this state while:

      (1)   The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;

      (2)   the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;

      (3)   under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;

      (4)   under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or

      (5)   under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.

      (b)   No person shall operate or attempt to operate any vehicle within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.

      (c)   If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.

      (d)   Upon a 1st conviction of a violation of this section, a person shall be guilty of a class B, nonperson misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment, or in the court's discretion 100 hours of public service, and fined not less than $500 nor more than $1,000. The person convicted must serve at least 48 consecutive hours' imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.

      In addition, the court shall enter an order which requires that the person enroll in and successfully complete an alcohol and drug safety action education program or treatment program as provided in K.S.A. 8-1008, and amendments thereto, or both the education and treatment programs.

      (e)   On a 2nd conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $1,500. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.

      As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments thereto.

      (f) (1)   On the 3rd conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.

      (2)   The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.

      The court shall also require as a condition of parole that such person enter into and complete a treatment program for alcohol and drug abuse as provided by K.S.A. 8-1008, and amendments thereto.

      (g) (1)   On the 4th or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 72 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.

      (2)   The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.

      At the time of the filing of the judgment form or journal entry as required by K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a certified copy to be sent to the officer having the offender in charge. The law enforcement agency maintaining custody and control of a defendant for imprisonment shall cause a certified copy of the judgment form or journal entry to be sent to the secretary of corrections within three business days of receipt of the judgment form or journal entry from the court and notify the secretary of corrections when the term of imprisonment expires and upon expiration of the term of imprisonment shall deliver the defendant to a location designated by the secretary. After the term of imprisonment imposed by the court, the person shall be placed in the custody of the secretary of corrections for a mandatory one-year period of postrelease supervision, which such period of postrelease supervision shall not be reduced. During such postrelease supervision, the person shall be required to participate in an inpatient or outpatient program for alcohol and drug abuse, including, but not limited to, an approved aftercare plan or mental health counseling, as determined by the secretary and satisfy conditions imposed by the Kansas parole board as provided by K.S.A. 22-3717, and amendments thereto. Any violation of the conditions of such postrelease supervision may subject such person to revocation of postrelease supervision pursuant to K.S.A. 75-5217 et seq., and amendments thereto and as otherwise provided by law.

      (h)   Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had one or more children under the age of 14 years in the vehicle at the time of the offense shall have such person's punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this section or an ordinance which prohibits the acts that this section prohibits. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.

      (i)   The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.

      (j)   In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.

      (k) (1)   Except as provided in paragraph (5), in addition to any other penalty which may be imposed upon a 1st conviction of a violation of this section, the court may order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.

      (2)   The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.

      (3)   Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:

      (A)   Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and

      (B)   whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.

      (4)   Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.

      (5)   As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.

      (l) (1)   Except as provided in paragraph (3), in addition to any other penalty which may be imposed upon a 2nd or subsequent conviction of a violation of this section, the court shall order that each motor vehicle owned or leased by the convicted person shall either be equipped with an ignition interlock device or be impounded or immobilized for a period of two years. The convicted person shall pay all costs associated with the installation, maintenance and removal of the ignition interlock device and all towing, impoundment and storage fees or other immobilization costs.(2)   Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization. (3)   As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than two years from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease. (m)   The court shall report every conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings or a complaint alleging a violation of this section to the division. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.

      (n)   For the purpose of determining whether a conviction is a 1st, 2nd, 3rd, 4th or subsequent conviction in sentencing under this section: (1)   "Conviction" includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section; (2)   "conviction" includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution; (3)   any convictions occurring during a person's lifetime shall be taken into account when determining the sentence to be imposed for a 1st, 2nd, 3rd, 4th or subsequent offender; (4)   it is irrelevant whether an offense occurred before or after conviction for a previous offense; and (5)   a person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, and amendments thereto, or an ordinance which prohibits the acts of this section, and amendments thereto, only once during the person's lifetime.

      (o)   Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person's driving privileges as provided by K.S.A. 8-1014, and amendments thereto.

      (p) (1)   Nothing contained in this section shall be construed as preventing any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited or made unlawful by this act as unlawful or prohibited in such city or county and prescribing penalties for violation thereof. Except as specifically provided by this subsection, the minimum penalty prescribed by any such ordinance or resolution shall not be less than the minimum penalty prescribed by this act for the same violation, and the maximum penalty in any such ordinance or resolution shall not exceed the maximum penalty prescribed for the same violation.

      Any such ordinance or resolution shall authorize the court to order that the convicted person pay restitution to any victim who suffered loss due to the violation for which the person was convicted. Except as provided in paragraph (5), any such ordinance or resolution may require or authorize the court to order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.

      (2)   The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.

      (3)   Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:(A)   Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and (B)   whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.

      (4)   Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.

      (5)   As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.

      (q)   No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining.

      (r)   The alternatives in subsections (a)(1), (a)(2) and (a)(3) may be pled in the alternative, and the state, city or county, shall not be required to, may elect 1 or 2 of the 3 prior to submitting the case to the fact finder.

      (s)   Upon a 4th or subsequent conviction, the judge of any court in which any person is convicted of violating this section, may revoke the person's license plate or temporary registration certificate of the motor vehicle driven during the violation of this section for a period of one year. Upon revoking any license plate or temporary registration certificate pursuant to this subsection, the court shall require that such license plate or temporary registration certificate be surrendered to the court.

      (t)   For the purpose of this section: (1) "Alcohol concentration" means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.

      (2)   "Imprisonment" shall include any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the board of county commissioners or the governing body of a city.

      (3)   "Drug" includes toxic vapors as such term is defined in K.S.A. 65-4165, and amendments thereto.

      (u)   The amount of the increase in fines as specified in this section shall be remitted by the clerk of the district court to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of remittance of the increase provided in this act, the state treasurer shall deposit the entire amount in the state treasury and the state treasurer shall credit 50% to the community alcoholism and intoxication programs fund and 50% to the department of corrections alcohol and drug abuse treatment fund, which is hereby created in the state treasury.

      (v)   Upon every conviction of a violation of this section, the court shall order such person to submit to a pre-sentence alcohol and drug abuse evaluation pursuant to K.S.A. 8-1008, and amendments thereto. Such pre-sentence evaluation shall be made available, and shall be considered by the sentencing court.

 

KSA 8-1014, the Kansas Statute dealing with driver’s license suspensions:

Suspension and restriction of driving privileges for test refusal, test failure or alcohol or drug-related conviction; increased penalties for blood or breath alcohol concentration of .15 or greater; ignition interlock device. (a) Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person refuses a test, the division, pursuant to K.S.A. 8-1002, and amendments thereto, shall:

      (1)   On the person's 1st occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

      (2)   on the person's 2nd occurrence, suspend the person's driving privileges for two years;

      (3)   on the person's 3rd occurrence, suspend the person's driving privileges for three years;

      (4)   on the person's 4th occurrence, suspend the person's driving privileges for 10 years; and

      (5)   on the person's 5th or subsequent occurrence, revoke the person's driving privileges permanently.

      (b) (1)   Except as provided by subsections (c) and (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state, the division shall:

      (A)   On the person's 1st occurrence, suspend the person's driving privileges for 30 days, then restrict the person's driving privileges as provided by K.S.A. 8-1015, and amendments thereto, for an additional 330 days;

      (B)   on the person's 2nd, 3rd or 4th occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device; and

      (C)   on the person's 5th or subsequent occurrence, driving privileges shall be permanently revoked.

      (2)   Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state and the person's blood or breath alcohol concentration is .15 or greater, the division shall:

      (A)   On the person's 1st occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

      (B)   on the person's 2nd occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for two years to driving only a motor vehicle equipped with an ignition interlock device;

      (C)   on the person's 3rd occurrence, suspend the person's driving privileges for one year and at the end of the suspension restrict the person's driving privileges for three years to driving only a motor vehicle equipped with an ignition interlock device;

      (D)   on the person's 4th occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for four years to driving only a motor vehicle equipped with an ignition interlock device; and

      (E)   on the person's 5th or subsequent occurrence, driving privileges shall be permanently revoked.

      (3)   Whenever a person's driving privileges have been restricted to driving only a motor vehicle equipped with an ignition interlock device, proof of the installation of such device, for the entire restriction period, shall be provided to the division before the person's driving privileges are fully reinstated.

      (c)   Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person who is less than 21 years of age fails a test or has an alcohol or drug-related conviction in this state, the division shall:

      (1)   On the person's 1st occurrence, suspend the person's driving privileges for one year. If the person's blood or breath alcohol concentration is .15 or greater, the division shall at the end of the suspension, restrict the person's driving privileges for 1 year to driving only a motor vehicle equipped with an ignition interlock device;

      (2)   on the person's 2nd and subsequent occurrences, penalties shall be imposed pursuant to subsection (b).

      (d)   Whenever the division is notified by an alcohol and drug safety action program that a person has failed to complete any alcohol and drug safety action education or treatment program ordered by a court for a conviction of a violation of K.S.A. 8-1567, and amendments thereto, the division shall suspend the person's driving privileges until the division receives notice of the person's completion of such program.

      (e)   Except as provided in K.S.A. 8-2,142, and amendments thereto, if a person's driving privileges are subject to suspension pursuant to this section for a test refusal, test failure or alcohol or drug-related conviction arising from the same arrest, the period of such suspension shall not exceed the longest applicable period authorized by subsection (a), (b) or (c), and such suspension periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of such suspension as authorized by subsection (a), (b) or (c), such person shall receive credit for any period of time for which such person's driving privileges were suspended while awaiting any hearing or final order authorized by this act.

      If a person's driving privileges are subject to restriction pursuant to this section for a test failure or alcohol or drug-related conviction arising from the same arrest, the restriction periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of restriction, the person shall receive credit for any period of suspension imposed for a test refusal arising from the same arrest.

      (f)   If the division has taken action under subsection (a) for a test refusal or under subsection (b) or (c) for a test failure and such action is stayed pursuant to K.S.A. 8-259, and amendments thereto, or if temporary driving privileges are issued pursuant to K.S.A. 8-1020, and amendments thereto, the stay or temporary driving privileges shall not prevent the division from taking the action required by subsection (b) or (c) for an alcohol or drug-related conviction.

      (g)   Upon restricting a person's driving privileges pursuant to this section, the division shall issue a copy of the order imposing the restrictions which is required to be carried by the person at any time the person is operating a motor vehicle on the highways of this state.

      (h)   Any person whose license is restricted to operating only a motor vehicle with an ignition interlock device installed may operate an employer's vehicle without an ignition interlock device installed during normal business activities, provided that the person does not partly or entirely own or control the employer's vehicle or business.