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Paul D. Cramm

Top Myths And Misconceptions Regarding DUI Charges In Kansas



Rectification: Clearly, this is a misconception. A positive chemical test, either of the breath or blood variety, in excess of the state’s legal limit is certainly the strongest evidence that a prosecutor would have to proceed with a DUI case. However, evidence of driving under the influence can come from many different sources, even in a case where someone refuses the breathalyzer. The prosecutor can still introduce evidence of the actual operation of the vehicle, such as whether the accused individual was weaving or swerving, or failed to stop at a controlled intersection. The prosecutor can also introduce evidence of that person’s performance on the standardized field sobriety tests. If someone is stopped for committing multiple traffic violations and has slurred speech or difficulty tracking the officer’s questions or communicating with the officer, then that maybe sufficient enough evidence to proceed with the DUI prosecution, even in the absence of a breath or a chemical test.


Rectification: While that may very well be the case, it is not necessarily so. The field sobriety tests, unfortunately, are designed for failure. It only takes 2 standardized errors, or clues of impairment, for the officer to classify the test attempt as a failure. So, even if someone feels as though they did relatively well on the test, the officer may be scoring against that person for little things such as not quite touching heels to toe on the nine-step walk and turn, moving their hands or arms away from their body for balance, starting the test before they have been told to begin, or for perhaps stepping out of the instructional stance before starting the test. There are lots of hidden clues or indicators of impairment that the officer may be scoring without the driver even realizing it.


Rectification: If someone is ultimately going to refuse the Intoxilyzer test at the station, then it is best to refuse all field sobriety testing at the scene of the traffic stop. It won’t do the driver any good to refuse the breath test if that driver has willingly attempted field tests and we have the field video showing the driver having marked or significant difficulty with the field tests. The driver also needs to understand that by refusing the breath test at right, they may be facing a significantly longer term of driver’s license suspension. Also, Kansas now has criminalized refusal of the breath test, such that the individual refusing the test can be charged with a crime for refusal of the breath test.


Rectification: This is certainly a misconception. Recitation of the right pursuant to Miranda only relates to or affects whether or not the prosecutor will be allowed to use any statements the driver has made at trial. If the prosecutor doesn’t intend to use the driver’s statements at trial, then it doesn’t matter whether or not the officer advised the driver of their rights pursuant to Miranda. Miranda only has to do with your right not to answer any questioning. Failure to recite Miranda has no effect of the legality of the traffic stop, or the DUI arrest.


Rectification: In today’s day and age, the vast majority of the police departments and sheriff departments do have cameras other than their patrol cars. A lot of officers now wear a body camera as well. So any improper conduct on the part of the officer should be documented on field video, but that’s not a guarantee. I certainly have had cases where officers have provided some explanation or excuse as to why the audio and video recording equipment did not function properly during the stop. Therefore, the notion that all events will be caught on camera should not be relied on.


Rectification: It’s common for police officers to be very comforting in order to attempt to be disarming to the defendant. They will do this to try to encourage the defendant’s cooperation in the field tests, and to try to encourage willingness to answer questions and be interviewed. Essentially, all they are trying to do is gather evidence to provide to the prosecutor.


Rectification: By and large, the court really isn’t concerned with the issue of whether or not any given driver is a diagnosable alcoholic. All the courts are concerned with is whether or not drivers are presenting a generalized safety risk to the community by operating a vehicle while under the influence.


Rectification: The reason the officer wants you to conduct the field sobriety tests is to justify an arrest. Rarely does someone do so well on the field tests, that the officer elects not to make an arrest. If someone wants to run that risk, that’s their decision. But oftentimes, attempting the field tests will result in technical failure and arrest.


Rectification: Probably not, depending on how strong the drinks were and how recently they were consumed. It is entirely possible for someone to have 3 drinks and be at or slightly over the legal limit of .08. Officers aren’t in the field trying to find justification for not making the arrest; officers are on patrol looking for justification to make the arrest.


Rectification: Absolutely not. The court absolutely does not care where anyone works, or what they do for a living. They are interested in keeping their DUI arrests and prosecution numbers high to show potential voters at the end of the year when election time comes. They want to generate revenue, and DUI prosecution is a major generator of revenue for the cities and court systems. Therefore, they do not care what the driver’s employment is.


Rectification: Absolutely not. They really have no concern for what someone’s social situation is, or whether they’re single or have children. They will prosecute all DUIs with equal zeal.


Rectification: Most states, Kansas included, will score DUIs from any jurisdiction. The fact that it occurred in a different state will not limit the prosecutor’s decision to score that DUI as a prior occurrence for purposes of prosecution. Most states will notify the state where you are licensed in if you get a DUI from out of state. So if you live in Kansas, and you go to Las Vegas and you get a DUI when you are on vacation, then The Department of Revenue in Las Vegas will notify the Department of Revenue for the state of Kansas of this DUI, and you will get notified from the Department of Revenue that they will likely take action against your driver’s license for having either failed, or refused the breath test, or for having received a formal court conviction for an alcohol related driving offense, even if that offense occurred out of state.


Rectification: Expungements on a DUI requires a 10-year waiting period in the state of Kansas. You must wait 10 years following successful completion of probation or diversion before you are eligible for expungement.


Rectification: In my world it should be, but prosecutors will frequently rely on the wording of the statute that prohibits driving while under the influence to the degree that renders someone incapable of someone safely operating the vehicle. Prosecutors will rely on that language to pursue a DUI charge, even where the driver has provided a sample at less than the legal limit of .08. They’ll proceed with the .06 or .07 case under the theory that the person was incapable of safe operation.


Rectification: There is a statutory mandatory minimum that the court must impose if there is a conviction for a DUI, whether it is a first or second or a subsequent offense. The court must impose a statutory mandatory minimum sentence and does not even have the discretion to let these things slide.


Rectification: It could actually do a lot of harm, particularly if you make an admission on social media that you had consumed alcohol prior to driving. If the prosecutor were to find this, you would not have what the courts deems to be an “expectation of privacy” in these communications, and the prosecutor could admit these at trial as party admissions or statements against interest.


Rectification: I don’t think that would help. If you admit guilt to the court, they will find you guilty and they will at the very least impose the statutory mandatory sentence, if not worse.


Rectification: This is absolutely not true. There are viable defenses in these cases. You need a very skilled lawyer who can be very patient and very thorough, and look at every single issue in the case. I recently reviewed a case where my clients blew well over the legal limit, but his driving looked good, and he looked good during his field tests. Only the Intoxilyzer test seemed insurmountable. When I watched the processing video, we were able to confirm that the police officer had my client blow into the Intoxilyzer test on 3 separate occasions before achieving the positive test result. The officer failed to put a new mouth piece or straw on the Intoxilyzer device. This is a clear violation of Intoxilyzer protocol. It allowed us to file a motion to exclude the Intoxilyzer test result from trial. In the absence of that Intoxilyzer test result, the remaining evidence did not prove my client was impaired. Had we not been thorough and insisted on reviewing the booking and testing procedure, we would have never known that the police violated Intoxilyzer protocol, and we would have not been able to win that case. So don’t give up hope – hire an experienced lawyer and have them conduct a painstaking review of the correct evidence of your case.


Rectification: It’s possible. We just don’t know until we get into the case. If there are no aggravating factors, such as we don’t have any accidents, property damage, or personal injury, then that looks better for your case. It is entirely possible that even if we are not eligible for diversion, we will probably be eligible for probation after serving only a limited portion of the statutory mandatory minimum sentencing in the case.


Rectification: That is very unlikely. The idea of representing yourself in court is not unlike the idea of drilling your own teeth, and giving yourself your own fillings. I would never attempt prosaic dentistry, and I don’t think anybody should attempt prosaic legal representation.


Rectification: I would not advise hiring someone who does not have extensive DUI experience. DUI law is very specific. It is a unique practice area; it requires a great deal of time and experience to be able to properly identify all of the issues that will come up in a DUI. I certainly think it’s beyond the scope of practice for someone who has no experience with DUI law specifically.


Rectification: I would say never go with a lawyer that guarantees success. It is a very specific and direct violation of the rules of ethics to guarantee to any litigant the projected outcome of their case, whether it is criminal, DUI, personal injury, or divorce. Any lawyer that guarantees an outcome has already committed an ethical violation in making that guarantee. I would not give them the opportunity to commit another ethical violation.


Rectification: DUI is a very specific practice area; I would not hire a divorce lawyer to handle mass tort litigation. I would not hire a personal injury lawyer to handle a highly contested child custody issue. The practice areas are very unique and very specific. All lawyers are not the same. I think you need to make an investment in who you are going to have representing you on the case, since the possibility of jail is at stake.


Rectification: DUIs can happen literally to anyone. People who have never been in trouble before may find themselves being pulled over on the way home from a rehearsal dinner, from a wedding, from a class reunion, or from a company Christmas party. Officers are so hyper vigilant during certain times of day, and certain times of year that they will initiate traffic stops for simple driving infractions that wouldn’t ever result in a traffic stop at 2 o clock in the afternoon. They are on the lookout for anyone to touch the dotted line to justify a traffic stop, and then things only go downhill from there. Therefore, I think just anyone can be stopped and arrested for DUI.


Rectification: Absolutely not. Talk to at least 3 different lawyers who focus or limit their practice to DUI defense. Meet them face to face and talk with these lawyers. Ask them questions and be sure to discuss with potential lawyers what happened during the earlier DUI. You may find that these lawyers would have had avenues of defense or that the previous lawyer you worked with wasn’t experienced enough to recognize or pursue those potential defenses.


Rectification: That depends on your insurance company and on your contract of insurance. Some insurance companies pride themselves on having a very low risk rating. They are eager to terminate policies for the slightest infraction. Other insurance companies seek out higher risk clientele and factor that into their risk analyses. What will happen to your car insurance is completely up to the insurance company and the contract insurance you have. Don’t be afraid to shop around.


Rectification: Depending on the nature of the employment you’re seeking, a DUI infraction may absolutely disqualify you from employment; particularly if the job you’re pursuing requires that you drive during the course of your job.


Rectification: Kansas, along with most States, makes it unlawful to operate under the influence of alcohol, or drugs, or any combination of alcohol or drugs to the degree that that influence renders the person incapable of safely operating a vehicle. The law makes no distinction between alcohol and drugs. The law makes no distinction between over the counter medications and prescription medications. The fact that you have a prescription for the medication does not mean it is lawful for you to operate the vehicle while under the influence of that medication.


Paul D. Cramm

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