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DUI Defense FAQs


A: Hiring a DUI lawyer is absolutely worth it because DUI is one of only two only jailable traffic infractions; for a first-offense DUI, if you are found guilty, you can be sent to jail for up to six months and a second offense can get you up to a year in jail, so based on the penalties alone, it’s very important to hire a lawyer right away. As far as making sure you have the best lawyer, you just have to ask a lot of questions, make sure you’re hiring someone who focuses a significant portion of their practice to DUI defense, make sure that person is a member of the National College for DUI Defense, and is someone who has actually conducted DUI trials and not simply accepted guilty pleas and diversion contracts. You want a lawyer who’s really tried these cases.


A: DUI defense is extremely technical; every year, the legislature makes the DUI laws more complicated and more complex having very technical defenses. You must have command of the National Highway Traffic Safety Administration (NHTSA) protocol for identifying impaired drivers, as well as their protocol for field sobriety testing; you need to understand alcohol breath testing, both preliminary breath testing and Intoxilyzer testing; you need to understand the requirements of the Kansas Department of Health with regard to evidentiary breath testing, in addition to the manufacturer’s protocol for operation of the breath testing device. These are just some of the more technical demands of the job, in addition to solid command of all elements of trial practice, Rules of Evidence and Fourth Amendment issues. The likelihood that someone with no background in DUI law will be able to his successfully is just not realistic.


A: Many of court-appointed lawyers are very good lawyers and they know the law but I’m a private practice; if I’m on the court appointment list, I don’t have the option to decline or politely say no to any cases. The cases the court appoints to me, I must handle. Oftentimes, you’ll see that court-appointed lawyers carry significantly greater caseloads than a private practice attorney would ever want to carry and carrying a very large caseload naturally limits the amount of time that a lawyer has to spend on any one given case; to prepare for and present a trial in a DUI case is significantly greater than the time required to simply show up at a plea hearing and accept a plea bargain, so the more cases an appointed lawyer can resolve by plea, the more time-efficient that court appointed lawyer can be. Trying cases is not time-efficient, but it’s the only way to ensure the best possible outcome for the client.


A: The law has tried to really discourage refusal of the breath test; in the past, the law discouraged refusal of the breath test by making the penalty of driver’s license suspension significantly longer for people who refuse the breath test than for people who lawfully submitted to it, even if they blew over the legal limit. Now, Kansas law has actually made it a crime to refuse the breath test, punishable by the same penalties you would face for conviction of the underlying DUI. One thing many people don’t know is that the crime of refusal of a breath test in Kansas only applies if you have a prior DUI diversion or DUI conviction.

If it’s the first time you’ve ever been accused of DUI in your life, you can refuse the breath test without facing independent criminal charges, although you still may face a longer term of driver’s license suspension but if you have no prior DUI charges, you may decline the breath test without fear of facing independent charges for criminal refusal of a breath test. I will say clearly that, in a case where there is no breath test or chemical test result, the lawyer is in a much better position to argue the case for a not guilty verdict or acquittal than if there is a chemical or breath test confirming an alcohol concentration above the legal limit.


A: If you fail the field sobriety tests, do not give up hope; I just tried a case this morning in Municipal Court for a young man who did not perform well on the standardized field tests. It was his first DUI ever and he declined the breath test. But because it was his first DUI, he was not charged with criminal refusal of breath test and even though he did not look great on the standardized field tests, his overall presentation, including his actual operation of the vehicle, his demeanor with the officer, his speech, his interaction with the officer during the stop made it impossible for the judge to find him guilty beyond a reasonable doubt of DUI, despite not looking fantastic on the field sobriety tests.

Don’t let the fact that you found the field tests to be somewhat difficult discourage you; you only have to find a good lawyer who will go through every facet of your case to determine whether it should be taken to trial.


A: Fortunately, I have not had a case yet in which they asked someone to recite the alphabet backwards; quite frankly, sitting here today, I could not recite the alphabet backwards; I’d struggle and think about every single letter. Oftentimes, the officers will ask you to recite the alphabet starting and stopping at a point other than A or Z, like the common test asking them to recite the alphabet starting with the letter C and stopping at Q because, in addition to reciting the letters in order, the driver will have to remember where they were supposed to start and more difficult is to remember where they are supposed to stop.

It’s hard because people are often nervous and somewhat anxious; when the officer says, “Start with the letter C and stop at the letter Q. You may begin,” it’s natural to continue reciting to the end and the letter Z, so, fortunately we don’t need to know how to recite the alphabet backwards for part of field testing. They often ask that you recite a certain sequence of numbers backwards, for example, 79 to the number 59; again, you’ll need to remember to stop counting when you hit number 59. One comment I will make is, neither the alphabet test nor the counting test are statistically validated tests, which means the National Highway Traffic Safety Administration has never administered these two tests to test subjects with known concentrations of alcohol in their bloodstream.

For that reason, the officer really can’t comment at trial as to what blood alcohol concentration he believes a driver may have had at the time based on their inability to successfully complete either the alphabet or the counting tests.


A: The Kansas Supreme Court recently reviewed a case by the Court of Appeals called City of Wichita vs. Molitor and in that case, the driver stipulated to having consumed some amount of alcohol earlier in the evening and, in fact, he said “two beers.” However, the Kansas Supreme Court made a very clear distinction between proof of prior consumption of alcohol and proof of actual impairment or inability to safely operate, and the fact that someone may have consumed one or two glasses of wine with dinner or one or two beers during the game with friends, is no longer cause for the same degree of concern that it may have once been. In those cases, with proper preparation we can present a very strong defense when a driver admitted to consuming a reasonable amount of alcohol during the evening prior to operating the vehicle.


A: Find the right lawyer; you have to take time to go meet lawyers at their office and talk to them face-to-face about the facts and circumstances of your case; not every case can be won and not every case should be tried; there are some for which the evidence is simply so negative and overwhelming that you won’t get a good result trying the case on the facts, but if you have a very experienced lawyer who can screen the case very carefully and thoroughly to make that determination, you may be able to get a great result through careful and skillful negotiation. To do that, you have to find a very good lawyer who knows what to do with the facts, both good and bad, as they appear in your case.


Presuming we can’t go back and undo what happened prior to the traffic stop, people make a lot of mistakes by waiting too long to hire a lawyer; there are very specific deadlines to meet, like you must file a written request for a driver’s license hearing. People, who receive a DUI, put it in the glove box and try to act like it didn’t happen until the day before court have probably missed the deadline to even ask for a hearing regarding driver’s license suspension.

People who wait till the last minute to hire a lawyer are not allowing themselves enough time to schedule appointments to meet with these lawyers to discuss their case, so they end up taking the first lawyer who is free the following day to appear in court with them. The biggest mistake people make is to minimize the case, tell themselves the charges aren’t serious and ignore the case; they wish it would just go away, but they end up making snap decisions regarding representation at the eleventh hour.


A: The highly technical specific nature of the evidence presented in DUI cases makes these cases very unique and difficult to try successfully. A lawyer must have command of many, many different elements of evidence that are not seen in any other type of crime.


A: The first myth is, “If I don’t blow, they can’t convict me,” but even without a breath test, if their driving is really impaired and they are all over the road or if they’ve had an accident, or if their interaction with the officer is poor, or they just plain look drunk on the field video, it is absolutely permissible for the judge or jury to convict based on the totality of the circumstances, even in the absence of a chemical test. You must have the right lawyer who can screen the case and present the evidence very carefully.

There are also misconceptions regarding whether or not the officer read the person their Miranda rights before arresting them, but they have nothing to do with the validity of the arrest. Also, I think there is a lot of confusion regarding the outcome of the DUI charge with regard to the driver’s license hearings, which are separate hearings on different days in front of different judges with different burdens of proof; it’s possible to win your DUI case and still lose your driver’s license, so you have to spend time talking with a lawyer that has handled not only a great deal of DUI work but also argued many an administrative hearing, to help explain the interactions between the driver’s license hearing and the DUI charge.


A: In Kansas, the law makes no distinction between impairment by alcohol or drugs, either illicit recreational drugs or prescription medications; it does not make an exception for prescription medications; if they impair one’s ability to safely operate the vehicle, the fact that we have a valid prescription for that medication does not make us immune from prosecution for DUI.


A: The standardized field sobriety tests are designed for failure, because officers are taught to administer the tests in a manner that encourages or promotes failure. The tests are ridiculous; they have nothing to do with actual operation of a vehicle and the manner in which the tests are scored allows the officer to attribute what I call ticky-tack errors that have nothing to do with balance or coordination; I’m never surprised when people will tell me they failed; I don’t know anyone who has passed the field tests.


A: Each subsequent DUI prosecution you face involves significantly more serious penalties than the previous, so if you’re facing a second or third charge of DUI, the penalties you face are far more serious than on a first offense DUI. That’s why it’s even more important to have good counsel on a second or subsequent lifetime DUI.


A: The fact of the matter is, the only thing that is different is the generalization that the average woman weighs less than the average man. When alcohol is consumed, our bodies’ metabolism takes over and to the extent a man weighs more and has greater muscle mass and blood volume, it will take more alcohol to achieve any given alcohol concentration, but the 0.08 standard is absolutely correlational regardless of size. It’s a proportional standard. It might not take as much alcohol but the percentage standard is the same from men to women.


A: It’s difficult but it can be done; we need to examine every step of test, including blood extraction, blood preservation and blood testing process, because any error in the collection of blood, the storage of the blood sample or the testing of the blood may result in a successful motion to exclude the test results from presentation to a jury. Blood draw cases are far more a test of the officers and lab technicians handling the sample than a test of the driver.


A: The DMV is responsible for issuing your right to drive a car – your driver’s license. They reserve the right to restrict or suspend your driving privileges independent from what happens in the DUI case, so people who ignore notices and deadlines from DMV face the possibility of losing their right to drive a vehicle, even if they win the DUI case.


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