Kansas Highway Patrol DUI Arrests Way Down

A local news channel ran an interesting story this weekend about the Kansas Highway Patrol and the fact that the agency has way fewer troopers now than it has in years past. The story says their numbers are down 16% since 2008. However, my understanding is that the numbers were way down before 2008 and that the Kansas Highway Patrol currently has  about the same number of troopers that existed in the 1970’s. There is very little state trooper presence on the highways these days, especially overnight. As a result of fewer troopers out on the highways, they are writing way fewer DUI citations. In fact, DUI arrests from the highway patrol are down 53% since 2008.

This is where numbers become interesting. I am surprised that the news didn’t report that “DUI arrests are down 53% in Kansas due to law enforcement!” The fact is that the number of DUI arrests fluctuates in large part based on the amount of attention that the offense is given by the police. I can remember many years ago when the Overland Park Police Department disbanded their “Traffic Safety Unit”, also known as the DUI squad, in order to concentrate on residential burglaries which were becoming a problem. A year later the “statistics” came out and showed that DUI’s were down by 30% and home burglaries were way up. It was reported as if there had been a steep drop in people drinking and driving when, in truth, the police just stopped looking for them and started looking for burglars. Overland Park has not had as many DUI arrests since in my anecdotal experience.

When I started handling DUI cases 20 years ago, I had a ton of cases with the Kansas Highway Patrol in Johnson County and Wyandotte County. There were always at least 3 or 4 troopers who emphasized DUI arrests and made a bunch of them so I would have dozens of cases with them every year. Now, I have very few cases with the Highway Patrol, maybe a handful a year. The Johnson County Sheriff’s Department seems to have stopped writing as many DUI’s in the past few years, as well. On that other hand, certain cities like Mission and Prairie Village Police Departments have increased their DUI enforcement.

DUI statistics can be a function of manpower, like in the current case of the Kansas Highway Patrol, or a function of a policy to emphasize enforcement of DUI or not, or merely a function of an agency having 3 or 4 officers who really want to make DUI arrests and are out hunting for them. When those officers move to a different shift, the numbers go back down. If the Highway Patrol is able to hire more troopers and increase their presence on the highways you can bet that the DUI arrest numbers will go up. It won’t mean that incidence of the crime is rising. Just like if you increase the number of fishermen fishing in a pond from 2 fishermen to 10, you are going to catch a lot more fish. It doesn’t mean the fish population is growing.

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Kansas DUI Expungement Time May Get Reduced

The Kansas House passed a bill today which would reduce the amount of time a person has to wait after they have finished a Kansas DUI diversion or completed the sentence for a DUI conviction before they can have that DUI expunged from their record. An article is here. Expungement is the process in which a DUI arrest, diversion or conviction can be wiped off of a person’s record and treated as though it never happened. Kansas law allows for expungement of most crimes after 3 years as long as a person has not been charged with another crime and expunging their record would be consistent with the public welfare and safety.

When I started handling DUI cases in Johnson County in 1994, a DUI could be expunged after 5 years. Then, the law changed and a DUI could never be expunged and would be on a person’s record for their entire lifetime. In 2011, the law changed again to say that a DUI could be expunged after 10 years. Now, we may go back to expungement after 5 years. 20 years of tinkering with the law and we may get back to where we started. The bill will go to the Kansas Senate. It passed by a pretty wide margin in the House so I am hopeful that it will soon become law.

In order to get a DUI expunged in Kansas, you have to wait the required time period (currently 10 years) from the time that you are released from diversion, probation, jail, etc. In other words, it is not 10 years from the date of conviction, but 10 years from the date of release from the sentence. A petition for expungement must be filed with the court where the case was handled. Usually, the prosecutor will then run a background check and see if the person has been charged with any other crimes or if there is any other reason to oppose the expungement. If the prosecutor agrees to the expungement, then an order can be presented to the judge of the court and the DUI is expunged. If the prosecutor objects to the expungement, then a hearing is held and arguments can be made to the court. In my experience, expungement is generally granted by the court if the person has not been in any trouble and a sufficient amount of time has passed. The judge will sign the order and the clerk of the court will have copies of the order served on the Kansas Bureau of Investigation, which maintains criminal records for Kansas. The KBI will then remove the information from its database.

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20 Questions to Ask Your Kansas DUI Lawyer

I have written about and blogged before about how it is that a person accused of a DUI should go about trying to find the best dui lawyer for their case. If you have been accused of driving under the influence, I would suggest starting with this article if you haven’t already read it. Every attorney seems to offer a “free consultation”. This “free consultation” typically consists of you sitting down with the attorney, the attorney telling you how much trouble you are in, and the attorney telling you how great he or she is and why you ought to hire him or her. The person charged with the DUI is overwhelmed, confused and nearly paralyzed by the gravity of the situation. They are usually too engulfed with fear to ask questions, or are never even given the opportunity to do so. However, this “consultation” should be about you getting consultation – answers to your questions – from an experienced professional. You are interviewing the attorney. The attorney isn’t interviewing you! The lawyer’s purpose in this meeting is to try to get hired. Your goal for this interview is to get to know the person so that you can determine whether this lawyer is the best one to handle your DUI case.

Anybody who graduates from law school can put out an ad or throw up a website that proclaims that he or she is an “experienced” DUI lawyer, that they will “fight for you” and that they have a “track record of results”. These are all relative terms and basic advertising slogans. It does not make any of that true. Some attorneys that I see advertising on their websites that they are “experienced” have been out of law school for two years and probably have never tried a case. You have to do your due diligence to ask questions and figure out if the lawyer is for real or just giving you a sales pitch. Here are some questions that I would suggest to help determine if an attorney is experienced and will fight for you:

When is the last time you went to trial in a case like this? (not just filed motions but litigated a case to a verdict in front of a judge)When is the last time you had a trial in front of a jury?Have you ever appealed a municipal court DUI charge to district court?Have you ever been successful at beating a case on appeal from municipal court?How many DUI cases do you handle a year?What percentage of your cases go to trial in front of a judge or jury?How much experience do you have with blood test cases? Urine test cases? Have you ever taken one to trial?Have you ever hired an expert to consult with you on a breath test case?Have you ever tried a DUI with a breath test coming in to evidence?Have you ever appealed an administrative driver’s license suspension to district court?Have you ever been successful in overturning a driver’s license suspension on appeal?Have you ever appealed a case to the Kansas Court of Appeals and/or Kansas Supreme Court?Will you personally handle appearances, negotiations and litigation on my behalf or will it be handed off to an underling or outsourced?Will you send me copies of the police reports, video recordings and any other evidence you receive from the prosecution?Have you ever appeared in front of the judge in this case in a contested proceeding? What was your experience?Have you ever subpoenaed documents from the Kansas Bureau of Investigation or a crime lab regarding a blood test or urine test in a DUI case? Ever cross-examined a forensic lab technician about a blood or urine test?Have you ever worked with an accident reconstructionist before?Do you charge additional fees in order to file motions or go to trial?Do you have a policy on how quickly you return telephone calls or emails?How many open cases do you have right now?

These questions need to be asked in person, not over the phone. You need to meet with the attorney at his or her office and ask the questions that are relevant to your case and which address whatever concerns that you might have. You need to tell the attorney what your primary concern is in the case – is it jail time? Losing your driver’s license? Having a conviction on your record? Losing a professional license, i.e. nursing certificate, physician certificate, SEC licensing, etc.? Those concerns should be very familiar to the lawyer and he or she should be able to tell you what you can expect and what his or her experience has been with that issue. Any lawyer that won’t answer your questions, seems annoyed by them or who is not able to answer them should be suspicious.

If you take the time to ask some questions and do your own research you should be able to find the right person for you and be confident in your choice. The decision of who to hire is an important one and should not be based on advertising, a phone call or a website alone. Ask questions and get answers.

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Kansas Moves To Punish Refusing to Incriminate Yourself in DUI Cases

I’ve posted long and hard over the years about the inaccuracy and unreliability of breathalyzers.  See How Breathalyzers Work – and Why They Don’t.  But at least you could always refuse to take the test.  You aren’t required to incriminate yourself, right?  I mean, this is America and we have the Constitution to protect us.

Maybe not.  This looks like yet another in a long list of constitutional rights that are slowly disappearing in DUI cases.  See, for example, The DUI Exception to the Constitution, The Disappearing Right to Jury Trial…in DUI Cases, DUI and the Disappearing Right to Counsel, Are DUI Roadblocks Constitutional? and Forced Blood Draws by Cops: Constitutional?.

House Votes to Criminalize DUI Test Refusals

Topeka, KS.  May 17 —  After a lengthy discussion of constitutional rights, the House has approved a bill that makes it a crime for suspected repeat offenders to refuse a drunk-driving test…

Under Senate Bill 60, drivers with a DUI conviction or prior refusal of a DUI test would automatically be guilty of a misdemeanor if they refuse a test. The penalty would be the same as for a DUI conviction.

The House passed the bill 103-13, but not without some concerns expressed by members that it “tramples” the right to remain silent when accused of a crime.

Rep. Sean Gatewood, D-Topeka, said he’s seen many drunk driving crashes and the harm they cause working as a firefighter and paramedic.

But he said he was not comfortable with making it a crime to refuse to take a breath or blood test.

“These are American citizens and they have the right to remain silent, which this bill sort of tramples on, because if you just stand there silent … then you’re a criminal,” Gatewood said. “You have your 4th and 5th Amendment rights … and I just think there is no greater ridge to stand on than the Constitution of the United States.”

Gatewood proposed to send the measure back to a House-Senate conference committee for further work, but that motion died on a 23-88 vote.

Rep. Pat Colloton, R-Leawood, who carried the bill on the floor, acknowledged that its impact on constitutional rights was an important issue, but on balance she supported it.

She said courts are being clogged with repeat offenders who refuse the DUI test and take their chances with a jury.

Some lawmakers said stopping drunk drivers outweighed the constitutional questions.

“I would gladly walk the line, breathe into the tube and draw my blood if it would get repeat drunk drivers off the road,” said Rep. Bill Otto, R-LeRoy. “This is about people who are killing people.”

“This is not about constitutional rights,” he continued. “What about the constitutional right to life, liberty and the pursuit of happiness? (a phrase from the Declaration of Independence, not the Constitution) When you’re killed by a drunk driver, they’ve deprived you of your life. Death penalty, when you did nothing wrong.”

So….if you refused to incriminate yourself, you would be convicted of a crime and given the same sentence as if you had been convicted of drunk driving.  In other words, you are basically convicted of drunk driving because you wouldn’t incriminate yourself!

Another constitutional right slowly fades away….

This entry was posted on Saturday, May 19th, 2012 at 8:33 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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