THC usage has increased since the passage of state laws allowing the use and possession of marijuana for recreational and medicinal purposes. This has a direct impact on DUI enforcement since more drivers will likely get stopped and arrested for suspicion of driving while high, or DUI-D. Some states like Washington and Colorado have passed laws setting a legal limit on THC levels. Both states have a limit of 5 ng/mL at which the driver is legally presumed "impaired" under the statute. Kansas has no such law but a driver can still be prosecuted for DUI-D if other factors are present during the testing stage of the investigation. A blood draw is required to test for THC and getting driver's to consent to a blood draw has proven difficult.
Domestic Assault charges are serious and could lead to a jail term up to 90 days and/or fine on a first offense. While the accused enjoys the presumption of innocence, any physical evidence on the victim, ie bruising or marking, will be used against the accused at trial. The accused should consider a plea agreement if his attorney is able to secure a favorable agreement whereby the original charge is reduced to a less offensive charge, such as Disorderly Conduct.
MIP charges can result in a 30-day license suspension if the student pleads Guilty or is found Guilty at a trial. Therefore, I usually recommend doing diversion if diversion is offered. Generally, the accused can apply for and get diversion if they have clean record. The person must complete an alcohol class and stay clean from alcohol/drugs for the entire diversion period of 6- to 12-months. In some instances, the case should be taken to trial if the evidence is weak or the student does not qualify for diversion due to prior alcohol arrests.
Missouri's Implied Consent statute allows Drivers 20-minutes to contact a lawyer for a "private" consultation prior to breath test decision
Because law enforcement deprived a Missouri driver of his right to confer 'privately' with his attorney prior to a breath test, and since the director failed to show the driver was not prejudiced, his refusal to consent to the chemical test was not voluntary and unequivocal, and therefore the circuit court erred in sustaining the revocation of his driving privileges. Petitioner's driving privileges should be restored.
I have written before concerning the new changes to the Kansas DUI statute. In July 2018, the new law took effect that instructs Judges on what to look at when considering a defendant's past DUI-related convictions. My client W.B. has two prior convictions, 1 from California and 1 from Iowa. We have filed motions to challenge these convictions based on differing elements of the individual state laws and are awaiting the results following our oral arguments in April 2019.
Can prior out-of-state DUI convictions be used against the accused facing a new DUI charge in Kansas?
Prior out of state convictions are subject to new considerations under the revised Kansas DUI statute, KSA 8-1567(j). Kansas courts will now look at the name of the offense (DUI), underlying elements of the offense (driving/incapable of safe operation/breath test over .08), and whether the out of state offense targets similar conduct to the Kansas offense. The revisions to the statute are a response to the court's ruling in State vs. Stanley, a 2014 case that ruled a prior Missouri DWI conviction was not a "comparable offense" and therefore not used against the defendant at sentencing of his Kansas DUI conviction.
High speed drivers who are not eligible for ticket "amendments" to non-moving violations still have recourse to get the initial high speed ticket lowered to a more reasonable speed for auto insurance purposes. Completing driving classes and showing proof of excellence in the classroom will aid young drivers in their quest for reduced penalties on high speed tickets.
Texting while driving and driving under the influence of alcohol (DUI) share similar characteristics and consequences. Both practices cause the driver to lose focus and concentration on the task at hand: driving. Most, if not all states, have laws to punish texting while drivers. However, the penalties are not near as severe as the DUI laws that punish drivers through license suspensions and fines and/or jail. Eventually the law for Texting and driving will catch up to the laws for DUI. Both can cause severe damage and injury and both should be punished accordingly.
Kansas courts generally do not consider variances in a breath test machine (Intoxilyzer 9000) when a driver submits a test just slightly over the legal limit of 0.08%. The Kansas statute does not give any cushion to a driver who blows 0.08% an hour or more after being pulled over. The DUI statute allows for a whopping three (3) hour window for the collection of a breath or blood test. This time frame allows for the alcohol level to continue rising in the blood until it hits a peak, and then begins to decrease as the alcohol is metabolized over time.
The American Criminal Justice System involves multiple levels of proof required to sustain a conviction or award child custody to one party over another. The sliding scale of proof is often a grey area for litigants looking to avoid prosecution. Law enforcement must meet at least two of the "proof levels" to sustain an arrest. and then must meet the highest level of proof, "beyond a reasonable doubt," to sustain a criminal conviction. Criminal defense lawyers often file pre-trial motions to knock out the prosecutors case, often citing the first two levels of "reasonable suspicion" and "probable cause" as problematic for the prosecutors. These two levels serve as the most litigated areas in the criminal justice system. It is where many DUI cases are won or lost.
Missouri's Implied consent statute, 577.041.1, is under review by the MO Supreme Court after an appellate court ruled the language used in the implied consent warning is "coercive" for using the inaccurate word "immediately" when warning of consequences for a breath test refusal. The driver actually has fifteen (15) days before have his or her license suspended, and therefore the use of the "word" is patently false and misleading and therefore a violation of one's due process rights.
Missouri voters approved medical use marijuana by a margin of 66 to 34. Under the law, "qualified" patients can legally obtain marijuana prescriptions and can cultivate up to 6 marijuana plants and purchase at least 4 ounces from regulated shops on a monthly basis. The taxes from the retail sales will benefit programs for our military veterans.
A driver facing a DUI-related license suspension should pursue a hearing to contest the issues involved with a DUI and the related paperwork handed to drivers at the conclusion of testing. While these hearings are difficult to win, some issues are easily found and contested with positive results for the client.
Kansas law allows driver's a chance to submit to testing even after initially refusing to blow while at the station. Five factors must be considered before allowing a driver to change his or her mind regarding whether to take a test. Drivers should know in advance whether they should agree to a test. Several factors, including driver's DUI history, should be considered before making this crucial decision.
Driver's license appeals are difficult and time consuming but provide driver's a second chance opportunity of avoid a suspension. Kansas law allows for a 10-day window to file a Petition for reconsideration with the Division of Vehicles or a 14-day window to file a Petition for Review in District Court.
Young drivers who drive in violation of their restrictions are facing a potential 30-day suspension of their license and fines up to $250 for a first offense. Keep these drivers on a short leash by insisting they drive according to the restrictions or close to home and before 10:00 PM for safety purposes. Too many young drivers are getting tickets for speeding and driving outside the restrictions. I blame the parents as much as the kids.
A loophole in the DWI statute allows some drivers to avoid the 5-year license denial upon a conviction of Driving with Excessive Blood alcohol content (Excessive BAC). A reduction of a DWI charge to Driving with Excessive BAC (577.012) allows the driver to avoid the statutory 5-year license denial on a 2nd DWI conviction.
Missouri law allows expungments of certain convictions after a 3 or 7 or 10 years "wait period" has lapsed, depending on the type of conviction. DWI convictions require a 10-year "wait" time while misdemeanor convictions only require a 3 year wait period.
Aggravated Assault is serious charge that generally involves the use of or display of a deadly weapon. The threshold question is whether the action caused another to be placed in fear or threat of injury. The facts of the case will be examined to determine whether the alleged victim's fear or claim of threat was reasonable. The accused no longer enjoys the presumption of probation under the Kansas sentencing guidelines when a deadly weapon is involved in the incident.
A no insurance ticket will result if you fail to maintain coverage at all times. A diversion process is an option for first time offenders in most, but not all, courts. Diversion is ideal as it allows you to avoid a conviction on your records but requires that you maintain a policy for at least 6 months. If you can afford a cell phone plan, you can afford a minimum coverage policy.
MIP (minor in possession) is a very common charge issued to even the finest and most gifted students. Law enforcement usually either sees the minor holding a beer or alcoholic drink, or demands an admission of consumption from the minor. A PBT device is often used at the scene for detecting alcohol on the breath, and courts will allow testimony by the officer of the use and results from PBT testing. While the PBT is not conclusive proof of consumption, it is considered persuasive. A diversion of the charge is frequently pursued by minors in order to avoid prosecution and suspension of their license. A conviction will trigger a 30-day suspension on a first offense under Kansas law.
A violation of a diversion agreement will cause a revocation to be filed and a court hearing set to determine the issues outlined in the notice. The best course of action to maintain the agreement is to propose additional sanctions, such as the Weekend Intervention Program, in lieu of a revocation. In the end the defendant keeps his or her diversion in place while serving additional penalties like the WIP program or similar "in custody" program.
A good working relationship between the attorney and client is necessary to achieve the best results for the client. On rare occasion the relationship should be terminated when both parties consent to the termination in writing.
Pre-trial bond conditions following a DUI arrest generally requires NO drinking and NO drug use. The use of alcohol could affect your ability to get diversion and could increase the requirements for diversion, including the completion of the Weekend Intervention Program, a 48-hour alcohol treatment class.
Application for Limited Driving Permit in Kansas following One-Year Suspension for breath test refusals and test over 0.15%
Kansas law allows drivers to apply for a Restricted Permit after 90 days of a one-year suspension following a breath test refusal or failure over 0.15%. The Permit is only valid with the interlock device installed in any vehicle driven by the applicant.