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December 2009 Volume 2, Issue 4 |
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| Avoiding Racial Profiling
Stratagies for Mutual Respect and Communication | |
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Coming Events
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Drunk Driving Over the Limit Under Arrest National Crackdown
December 16, 2009 -January 3, 2010
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Train the Trainer Jan 25-28, 2010 Charlotte, NC
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Lifesavers Annual Conference
April 11-13, 2010
Philadelphia, PA
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April 18-22, 2010
Dallas, TX
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NAPC Summer Conference
July 7-10, 2010
Napa, CA
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NDAA Summer Conference
July 11-14, 2010
Napa, CA
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IACP Impaired Driving Conference
July 22 - 24, 2010
Pittsburg, PA
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 By Herman T. Jones
Director of Administration, Kansas Highway Patrol, Member of Governor's Task Force on Racial Profiling
In 2005 the Kansas Legislature enacted laws (KSA 22-4606 through 22-4611) that prohibit state law enforcement agencies and officers from conducting themselves in a manner that would be construed as racial profiling. The definition of racial profiling that was born of this law reads; "the practice of a law enforcement officer or agency relying, as the sole factor, on race, ethnicity, national origin, gender or religious dress in selecting which individuals to subject to routine investigatory activities, or in deciding upon the scope and substance of law enforcement activity following the initial routine investigatory activity. Racial profiling does not include reliance on such criteria in combination with other identifying factors when the law enforcement officer or agency is seeking to apprehend a specific suspect whose race, ethnicity, national origin, gender or religious dress is part of the description of the suspect." While some individuals feel this definition provides direct meaning as to what is considered racial profiling, others feel differently. I am not going to debate the meaning as presented but I've been across our great state speaking and teaching on the matter of how law enforcement can combat racial profiling.
A segment of the racial profiling law mandated that law enforcement officers receive annual training specific to the subject matter. Moreover, law enforcement entities have been required to receive training that provides an understanding of the historical and cultural systems that perpetuate racial profiling, assistance in identifying racial profiling practices, and providing officers with self-evaluation strategies to preempt racial profiling prior to stopping a citizen.
At the onset of this mandate, not many agencies had specific training in place that covered the specific subject matter as spelled out in the law. I feel it's worth noting several Kansas law enforcement agencies, as well as the Kansas Law Enforcement Training Center (KLETC) near Hutchinson, provided subject matter related to law enforcement behaviors that are contrary to racial profiling. Nonetheless, very few had training that was specific in the topic. Subsequently, KLETC collaborated with various training outlets from across the state to formulate a basic training curriculum for all Kansas law enforcement officers. Subsequently, several Train-the-Trainer venues were set up across the state so that officers from all over were given an opportunity to receive the mandated racial profiling training. Kansas law enforcement has consciously engaged in racial profiling training since the enactment of the racial profiling laws. While some of the training material has changed over time, the practice of two items remain the same; mutual respect and communication.
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In accordance with K.S.A.22-4610 Kansas law forcement agencies are required to submit an annual report of all racial profiling complaints to the Attorney General's office by January 31. Every agency submits a report even if it has not received any complaints of racial profiling. Check out the link for 2008: racial profiling report |
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Racial Profiling (cont.)
Demonstrating Respect
 I believe the constant that remains in combating racial profiling is when officers and the community establish and maintain mutual respect with each other. Mutual respect prevails when all participants are willing to engage with one another in a positive manner. As a young kid my parents taught me - to receive respect one must give it. Thus, I have geared my basic teachings in that same manner; law enforcement and community members should demonstrate mutual respect.
Generally speaking, our communities where we work and live provide diversity; sex, gender, age, socio-economic, race, religion, etc. Today, it is almost inevitable to interact with a diverse world when we go out to eat, conduct personal business or just travel on the streets and highways of your community. I believe harmony within a community is one that consists of understanding the existing diversity and realizing the value that we have to offer to one another.
Understanding differences within a community tends to break down barriers of ignorance and misunderstanding. I realize as a police officer I did and said certain things that the community may not have totally understood. Why would an officer sit with his back to the wall in a restaurant? Officers understand this without question yet the public may think that the officer is a loner or impersonal. Actually, the officer has been taught to be vigilant in their observation skills and by placing their back to the wall an officer limits what's at their back.
Obviously, the community wants and expects protection from wrong-doers in society, thus the role of law enforcement. In the same way, law enforcement expects citizens to do right and abide by the law. I've often asked citizens who they call when there's a need for reporting a suspicious person in the area, a report of theft, or the arrest of a perpetrator. As a follow-up, I ask them to solve crime in their community without the assistance of their law enforcement. As well, I've asked officers to attempt their investigations without the assistance of the community. Officers may respond to the scene of a multi-vehicle crash in order to determine what happened. If the citizens refuse to give witness statements or simply point out the person that neglected a known traffic violation, the officer's task may be rather arduous. Yes, officers are trained to obtain physical evidence, but how much easier when the investigation is aided by citizens. There have been many instances when common citizens have come to the aid of a police officer by directing vehicles from the crash scene until other law enforcement arrives on the scene or citizens subdue an attacker during a physical confrontation. These actions are not just born overnight; they are fostered by demonstrating mutual respect.
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Racial Profiling (cont.) Communication Stratagies
I believe communication plays an essential role in establishing positive relationship within the community. More often when we can communicate who we are and why we do certain things it limits the unknown. I have found that we, common people, try to normalize our world. When we don't understand something we have a tendency to fill the unknown with limited information. Unless we fill the gap of information with research or facts we might consider filling the missing link with unfounded information, best known as stereotyping.
We have been taught that a stereotype is an unfounded label or general characteristic placed on a group as a result of an experience with an individual or a minimum amount of individuals. Basically, police officers are stereotyped as always eating donuts. The fact that some officers like donuts doesn't mean that all officers like donuts. (I must admit I do like donuts, particularly when they're right out of the oven and layered with icing.) The misconception comes from when night shift officers of yesteryear needed a place to write reports and the donut shop was one of very few businesses open in the wee hours of the night shift. The donut shop generally provided lighting and coffee. Plus, the officer provided a sense of security for the baker. Education helps eliminate barriers of trust and respect.
Dr. George J. Thompson, President and Founder of the Verbal Judo Institute, explains it best by communicating your actions. He states,
"if you are enforcing rules/laws that exist for good reason, don't be afraid to explain that. Your audience may not agree with or like it, but at least they have been honored with an explanation. Note, a true sign of RESPECT is to tell people why, and telling people why generates voluntary compliance. Indeed, we know that at least 70% of resistant or difficult people will do what you want them to do if you will just tell them why. When you tell people why, you establish a ground to stand on, and one for them as well. Your declaration of why defines the limits of the issue at hand, defines your real authority, but also gives the other good reason for complying, not just because you said so. Tactically, telling people why gets your ego out of it and puts in its place a solid, professional reason for action."
So what are some of those strategies that help build on mutual community respect and trust? Very simple, treat people in the same manner, if not better, than what you would wanted to be treated. Here are some other simple strategies:
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Go out of your way to be personable and friendly with minority group members. Many do not expect it.
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Don't appear uncomfortable or avoid discussing racial issues with other officers and citizens.
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Provide outreach to diverse community members. Make positive contacts with minority group members. Don't let them see you only when something negative happens.
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Allow the public to see you as much as possible in a non-enforcement role.
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Make a conscious effort in your mind to treat all segments of society objectively and fairly.
Strategy outcomes like these lead to mutual respect and trust within a community. Police officers are less likely to be accused of wrongful allegations. Consequently, trust and respect lends itself to less lawsuits. Further, citizens are more likely to participate with law enforcement activities such as a Citizen Academy, recruitment and hiring efforts, or community based functions. Law enforcement agencies are more inclined to improve upon its efforts to interact with the diversity of the community.
I've stated to officers that we in law enforcement don't have to respect people that we meet on the job, but because of the job that you've selected, to be a professional you do have to treat them with respect. Consequently, the behavior that an officer exhibits is everything to the citizens they serve. Education and communication provides an avenue for open and productive dialogue between law enforcement and the communities it serves. Both can provide the best opportunity for identifying community-based solutions to problems associated with racial profiling. Moreover, trust can be the product of your conduct. Citizen perceptions of police practices can be considered just as important as the reality of their practices. The same can be said of police perceptions of the citizens.
To locate a trainer in your area contact:
Mark Damitio of KLETC at 620.694.1400
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Case Updates
JURY ISSUES-ADMISSIBLE EVIDENCE
Juror drinking-no SFST or Breath test-Failed to redact video
State v. Dobbels 2009 WL 3630915 (10/30/09)
***UNPUBLISHED***
Officers stopped the defendant for significant bad driving. During the stop the defendant had an open container of beer in his vehicle, lost his balance while standing, smelled of alcohol, denied drinking, refused field sobriety tests and refused the breath test. During trial after lunch, a juror approached the Judge's assistant and indicated a male juror smelled of alcohol. The juror was questioned and indicated he had approx. 3 ounces of vodka in his home at lunch. The juror was dismissed and replaced with an alternate. Two other jurors were questioned to determine if they could continue to be fair and impartial and they indicated they could. The defendant claimed the court should have granted the defendant's request for a new trial. The appellate court indicated clearly the male juror's conduct constituted misconduct but the other two jurors aware of the misconduct indicated they could remain impartial and therefore the court did not abuse its discretion in denying the motion. There was a videotape admitted during trial by the state that had unredacted footage of another stop involving a completely different incident with a different individual. There was a request for a mistrial. The court admonished the state and required redaction. Later the judge told the jury the video was replaced with a redacted version. The defendant did not prove his rights were substantially prejudiced by this along with the fact no objection was made at trial.The case was remanded back due to an error at sentencing but defendant's conviction stands.
 ARTICULABLE SUSPICION-VEHICLE IN MOTION
Seizure is not when lights are activated
State v. English 2009 WL 3630925 (10/02/09)
***UNPUBLISHED***
Officer observed a vehicle failing to maintain its lane of travel by swerving noticeably. The vehicle also went left of center before stopping at a stop sign. The officer activated his emergency lights, but the defendant did not immediately pull over. The defendant did pull over to the curb, however, the vehicle's passenger side tires went up and over the top of the curb and then she drove back into the traffic lane continuing to drive. The officer used his siren and horn. The defendant eventually pulled into a parking lot. A video was presented corroborating the officer's testimony. The court suppress all evidence stating the officer activating his lights was a "seizure" of the vehicle and there were no articulable facts or reasonable inferences to justify that action.
Critical to the decision by the appellate court was noting the following: "In determining the legality of a motor vehicle stop, the critical time when a law enforcement officer must have knowledge of facts giving rise to a reasonable and articulable suspicion that the defendant had committed, was committing, or was about to commit a crime is at the time of the actual stop, not when the law enforcement officer activates the police car's emergency lights," citing State v. Newman 266 Kan. 319 (1998). The case was remended for further proceedings.
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FIELD SOBRIETY TEST-PROTOCOL
HGN admitted-margin of error-alcohol standard
State v. Ruth 217 P.3d 1018 (10/23/09)
***UNPUBLISHED***
A trooper stopped the defendant for speeding and found her to be intoxicated. At trial to the court, the trooper indicated he administered the HGN test and saw nystagmus in both eyes. The defendant was arrested and taken to the jail where she took the Intox 5000 breath test. During the protocol the external standard solution indicated a 0.074 reading which was within the protocol. The defendant's breath sample showed her BAC to be .08. The judge found her guilty. The defendant appealed the case based on the admission of HGN citing the Witte case. The appellate court indicated this case is distinguishable from Witte. This case was heard by a judge and not a jury. The fact the judge in ruling on the objections of the defendant concerning HGN stated the actual results of the test were questionable but the trooper could testify as to his own observations. The defendant also claimed as in Witte the HGN evidence could have a disproportionate impact on the decision-making process of the fact finder in light of the fact the external standard was on the low side of its 0.08 true content. The court indicated even if the court had erred with the HGN evidence the State is not required to prove the driver's intoxication level has reached the 0.08 threshold within a certain margin of error. The margin of error is just one factor to be considered by the fact finder. The 0.08 reading was sufficient to uphold the conviction.
FIELD SOBRIETY TEST-ARTICULABLE SUSPICION-VEHICLE IN MOTION
Estimation of speed-no radar used-SFST's refused
State v. Steele 217 P.3d 1018 (10/23/09) ***UNPUBLISHED***
An officer observed the defendant traveling at a high rate of speed, in his estimation 40 mph in a 20 mph, approaching an intersection. The driver slammed on his brakes and the vehicle "dipped down" and came to a stop past the crosswalk. Officer activated his lights. The driver stopped approximately 5 feet from the curb. The driver was "very curt" in his answers, produced an ID card but was adamant he had a license. After the officer pointed out he had given him an ID card the defendant produced a license but dropped it in the process. The officer smelled a strong odor coming from the defendant and asked if he had been drinking. The defendant denied drinking. He was asked to step from the car but refused. Eventually he did step from the car but refused to take the SFSTs. The officer attempted to place him under arrest. There was a brief scuffle and the defendant was arrested. He did take the breath test which indicated a BAC of 0.181. The defendant claimed there was no reasonable suspicion to stop him for the traffic infraction-the court indicated the estimation of speed alone might not have been enough to convict him of speeding but it certainly established a reasonable suspicion that he was speeding not to mention pulling past the crosswalk. The defendant also claimed no probable cause for the arrest. The defendant focuses on his refusal to take the SFSTs and cites Wonderly. The appellate court noted the defendant's refusal to perform the SFST's is but just one factor that caused the officer to have PC to arrest. The court noted it is justified in considering a defendant's refusal to submit to field sobriety tests citing State v. Bradford 27 Kan.App.2d 597 (2000)
SENTENCING-FINES/FEE/PENALTIES
Mandatory fines-financial resources
State v. Gillis 2009 WL 3270831 (10/09/09)
***UNPUBLISHED***
The defendant plead to a 4th or subsequent DUI. The court imposed the mandatory minimum fine. The defendant, as many before him, argued the court did not follow K.S.A. 21-4607(3) which indicates the court must take into account the financial resources of the defendant. The appellate court indicated it is only when the court imposes more than the minimum fine that the district court is required to consider the defendant's resources. |
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 ADMISSIBLE EVIDENCE-EXPERT WITNESS
Discharge notes from hospital-discharge diagnosis expert opinion testimony
State v. Logan 217 P.3d 1018 (10/23/09)
***UNPUBLISHED***
The defendant complained on appeal discharge notes from the hospital constituted hearsay and should not be admitted. An attending nurse was present at trial and identified the discharge diagnosis as a routine hospital procedure and those notes indicated the defendant's intoxication. The appellate court noted hospital records are admissible as business records under K.S.A. 60-460(m) citing State v. Broyles 272 Kan. 823 (2001) and were properly admitted by the trial court. The defendant also objected to the information in the discharge papers noting they were opinion evidence and highly objectionable. The objection did NOT come during trial. The appellate court stated even if the defendant timely objected the information in the notes are admissible because they meet K.S.A. 60-460(b) under the permissible realm of expert opinion testimony in that it aided the jury in arriving at a reasonable factual conclusion from the evidence. There was also a Crawford objection which was also denied.
ACCIDENT-FIELD SOBRIETY TEST
ARTICULABLE SUSPICION-VEHICLE NOT IN MOTION
No reasonable suspicion to request-totality of the circumstances
State v. Brown 2009 WL 3172776 10/02/09
***UNPUBLISHED***
Officers arrived at the scene and observed a vehicle missing the front passenger side tire and it appeared the vehicle had sustained "side-swipe type damage"and yellow paint transfer. The defendant claimed he was the driver. While speaking with him the officer could detect an odor of alcohol but the defendant denied drinking; he failed also to give a reason for the crash. The defendant indicated he had not been injured and the officer did not see blood or other injuries. The defendant was asked to take SFST's which he did and failed. The defendant argued at a suppression hearing there was no reasonable suspicion justifying the officers' decision to administer the tests to him. The defendant did not dispute the officers had a right to detain him for the purpose of investigating the crash. Reasonable suspicion depends on the totality of the circumstances. The court noted State v. Evans 711 N.E.2d 761 (Ohio 1998): factors to consider: time, day and location of stop, erratic driving, report of intoxication, eyes, speech, odor of alcohol, demeanor, lack of coordination, admission of alcohol consumption and officer's previous experience with drunk driving. In this case based on the totality there was substantial competent evidence to believe the defendant was operating a vehicle under the influence. The decision to expand the scope of the investigation to include SFST's was warranted.
IMPLIED CONSENT
Reasonable grounds to request
Eller v. KDOR 2009 WL 3172805 10/02/09
***UNPUBLISHED***
Defendant was speeding, admitted to having a few beers, had two open 30 packs of beer in his car, was unable to stand and claimed he could not perform the SFST's because of an old football injury. The defendant was arrested. The defendant's license was suspended. The only issue on appeal is whether the officer had reasonable grounds to request the defendant to take the Intox test. The defendant compares his case to Wonderly. The KDOR argues Campbell. The appellate court finds the district court's ruling was supported by substantial competent evidence and uphold the suspension of the defendant's license.
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 ANONYMOUS TIP/INFORMANT
ARTICULABLE SUSPICION-VEHICLE NOT IN MOTION
Tag number-color/type of car only-no further information
State v. Parish 2009 WL 3082531 09/25/09
***UNPUBLISHED***
Officer was directing traffic at a WSU game. As a vehicle passed him it yelled out a tag number and color and type of vehicle and stated "guy's in the lot driving drunk". The officer continued to direct traffic and noticed the type and color of vehicle was in the line to come out of the parking lot. The officer checked the license tag and it matched what the anonymous tip had indicated. The officer approached the vehicle and immediately smelled an odor of alcohol. He recognized the persons in the vehicle as individuals he saw earlier going into the game as being boisterous and obnoxious. He did not think they were intoxicated upon his first encounter at that time. The officer because he was directing traffic could not deal with the person while they were in line to exit so requested the driver's keys so that he could not drive away. Approximately 10 minutes later he continued his investigation. The driver was arrested for DUI. The defendant requested a motion to suppress which was denied and he was convicted. The appellate court noted reasonable suspicion is required to justify the stop. When dealing with anonymous tips the court refers to State v. Slater 267 Kan. 694 (1999) This case appears to be a true anonymous tip. The information given by the tipster was sufficient to identify the vehicle. The officer observed a vehicle coming out of the parking lot that was the same color and type with the corresponding license number. Although the officer did not observe any erratic driving or driving to indicate possible impairment the minimal intrusion is balanced against the substantial harm caused by intoxicated drivers. The stop was justified.
ARTICULABLE SUSPICION-VEHICLE IN MOTION
Headlight out-mistaken belief
State v. Young 2009 WL 3172773 10/02/09
***UNPUBLISHED***
Officer stopped the defendant's vehicle for a headlight out. The driver smelled of alcohol, had slurred speech, failed SFST's and was arrested. During trial two witnesses testified the defendant's headlights were operable after the traffic stop. The defendant argued his headlights were working and the officer lacked reasonable suspicion to conduct the traffic stop. The court cited City of Manhattan v. Larson 26 Kan.App.2d 851 (2000) reasoning if the officer was under a mistaken belief that the headlight was inoperable he still could have had a reasonable suspicion to conduct the traffic stop based on that mistaken believe. The defendant also failed to maintain a continuous objection to the entire line of questioning. Because of the failure to object his appeal was not preserved.
IMPLIED CONSENT
Burden on licensee to show lack of reasonable grounds to request
Horton v. KDOR 2009 WL 3270833 (10/09/09)
***UNPUBLISHED***
Officer observed three minor traffic infractions. The vehicle was stopped and the defendant had an odor of alcohol coming from her, admitted to having drank and her eyes were bloodshot. On the SFST's there was only one clue on the walk and turn, and three clues out of four on the one-leg stand. She was arrested; her BAC was 0.142. The defendant claimed there were not objective facts to establish reasonable grounds to request the test. One who challenges an administrative action suspending their license has the burden to show that the officer lacked reasonable grounds to request the test. In this case, the defendant argued Wonderly. The appellate court along with the district court determined the facts were not similar and determined the officer had reasonable grounds.
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PROBABLE CAUSE TO ARREST-FIELD SOBRIETY TEST
Crash-no field sobriety tests-no injury
State v. Hamilton 2009 WL 3378207 10/16/09
***UNPUBLISHED***
A Pottawatomie Deputy found a vehicle had left the roadway and was in the middle of a field. It was raining. The deputy found a person reclining in the driver's seat asleep. He woke up the defendant and determined he was not hurt, had a very faint slurred speech, was unsteady on his feet, smelled strongly of alcohol. The defendant believed he was somewhere between Wichita and Coffeyville-nowhere near his present location. Because of weather conditions, the deputy did not administer SFST's nor a PBT but placed the defendant under arrest for DUI. At the jail the defendant failed SFST's and his BAC was 0.153. The defendant filed a motion to suppress evidence because there was a lack of probable cause for his arrest. The court looked to the totality of the circumstances and noted the defendant exhibited clear physical manifestations of intoxication which was different than in the Wonderly and Pollman cases. The facts here would lead a reasonable and prudent officer to believe guilt was more than a mere possibility. The defendant also complained of his fine. But the court also found the record to be sufficient to determine if he had financial resources to pay.
ARTICULABLE SUSPICION-VEHICLE IN MOTION
"As near as practicable"-not a strict liability standard
State v. Marx 289 Kan. _____, 215 P.3d 601 (09/18/09)
The saga continues and is resolved? The defendant crossed the fog line with his motor home. He then overcorrected and crossed the dotted while line separating the two northbound lanes. The officer stopped it. The court reviewed the statute which reads as follows:
(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. The Supreme Court concluded there are two separate rules of the road in the statute: 1. Keep entirely within a single lane 2. However when it is impractical to do so (due to weather or other conditions of the road) the driver may changes lanes if he or she can do so safely. Because of this language this is not a strict liability infraction as are most traffic infractions. Therefore the officer is required to present evidence there were no conditions that made it impractical to stay in a single lane- requiring or compelling the driver to change lanes. Editor's note: It would appear from the cases an officer if he wishes to stop a vehicle from failing to maintain a single lane should note in his report such things as: no weather conditions caused the deviation, no obstruction was in the way of travel, the officer did not have any problems maintaining the same roadway in the same area, there were no animals that caused the deviation, no turn signal was used to make any type of lane change or indication the vehicle was passing, if known, no other vehicle you observed made the same deviation. Clearly if there are other indications of traffic violations they should also be noted.
ARTICULABLE SUSPICION-VEHICLE IN MOTION Weaving with lane-Marx decision
State v. Sullivan 2009 WL 3378215 10/16/09 ***UNPUBLISHED***The officer observed the defendant drive at 1 a.m. The vehicle weaved within its lane the entire time and the car crossed the lane dividing line and nearly struck a curb. The officer was trained in DUI detection and taught to look for indicators of impairment. The officer believed the defendant's weaving and failure to maintain a lane were indicators of alcohol impairment. The vehicle was stopped. The defendant challenged the stop based on State v. Ross 37 Kan.App.2d 126 (2007). The State indicated U.S. v. Jones 501 F.Supp.2d 1284 (D.Kan. 2007) and Marx. The Kansas Supreme Court has over ruled the Marx panel in State v. Marx 289 Kan.___ ,215 P.3d 601 (2009) stating the State must present more information than an observation of a lane breach in order to use that violation to justify a car stop. The district court found, and the appellate court agreed, the defendant was in a single lane and that there was one movement across the line with no showing that there was any traffic violation or infraction in that regard. With this sparse record the suppression is affirmed.
ARTICULABLE SUSPICION-VEHICLE IN MOTION
Weaving with lane-Marx decision
State v. Knight --- P.3d---, 2009 WL 3678259 (11/06/09) This case is not a DUI case however the trooper noticed the defendant's vehicle unable to keep his car within its proper lane of travel. The car crossed approximately 3 feet over the line separating the left lane of the highway from the shoulder. The trooper also observed the car weave within his proper lane of travel two or three more times. And lastly the trooper noted the vehicle cross approximately 1 foot over the dotted line on the right side of the lane. The trooper followed the defendant for one half miles and stopped the vehicle for failing to maintain a single lane. The trooper suspected the defendant "was either intoxicated or a sleepy driver". The state argued State v. Field 252 Kan. at 664. "There is no requirement the officer actually observe a traffic violation being committed. As indicated by the other cases cited herein, the repeated weaving of a vehicle within its own lane may constitute reasonable suspicion for an officer to stop and investigate the driver of the vehicle. The appellate court noted the trooper's observations of the defendant's car weaving in and out of lanes without signaling and his car's weaving within its proper lane of travel, standing alone created sufficient reasonable suspicion for the trooper to believe the defendant was DUI or sleepy and it justified a temporary investigative stop. | |
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 ACCIDENT-MIRANDA
Duty of drivers to provide information
State v. Custer 2009 WL 3738494 (11/06/09)
***UNPUBLISHED***
Officers found the defendant lying in a field at a crash site. The officers asked if the defendant was the driver and if he was injured. The driver admitted being the driver and was later charged with DUI. The defendant requested a motion to suppress his statements at the crash scene. The appellate court notes: "The State has placed the duty on all drivers of vehicles involved in accidents to provide information regarding the facts and circumstances of the accident. Law enforcement officers routinely investigate accidents and insure that proper reports are filed. Here the officers were performing their duty when obtaining the information necessary for the accident report. Police officers traditionally investigate the scene of accidents and during such investigation obtain information from individuals not under restraint. General on-the-scene questioning as to the facts surrounding the cause of the accident or other general questioning of citizens in a fact-finding process is not affected by Miranda." The court did not error by allowing admission of the statements. There also was a review dealing with sufficiency of the evidence and fines assessed.
SFST
Administrative hearing-reasonable grounds
Lewis v. KDOR 2009 WL 3738334 (11/06/09)
***UNPUBLISHED***
Officer found a vehicle parked left of center in the street with the door open and the motor running. It was blocking the driveway of a residence. Defendant admitted she had been driving the car, she had just arrived, and she had consumed alcohol just prior to driving the vehicle. The officer noticed her eyes were bloodshot and watery, she mumbled her speech, and she emitted a strong odor of alcohol. The defendant admitted to parking the vehicle left of center in the road. The licensee argues the officer had no reasonable grounds to request SFSTs. The appellate court noted based on the totality of the circumstances, the officer had a reasonable belief the defendant was DUI, such that further field sobriety testing was appropriate, is supported by substantial competent evidence.
ARTICULABLE SUSPICION-VEHICLE IN MOTION
Public Safety Stop-motorcycle-Marx
State v. Jimeson 2009 WL 3837664 (11/13/09)
***UNPUBLISHED***
The officer observed a motorcycle drift off the pavement and onto the gravel shoulder. The officer later indicated "the back end of the motorcycle kicked out" and then returned back to the paved road. The officer indicated he stopped him to find out if everything was okay with them. After the stop the officer immediately asked the defendant if he was "drunk". After conducting some SFST's the defendant was arrested for DUI. The court noted although the officer indicated the traffic stop was for public safety reasons the officer's conduct did not correlate with that motive. He never asked the defendant if he was having mechanical trouble with his motorcycle but focused immediately on whether the defendant was drunk. There was also a short review of Ross and Marx which the court also found the State's argument lacking. The district court sustained the motion to suppress because of the illegal traffic stop and the court of appeals agrees.
SENTENCING-PRIOR CONVICTIONS
Failed to object-probation violation-city ordinance
State v. Parton 2009 WL 3837638 (11/13/09)
***UNPUBLISHED***
The defendant was charged with a 3rd offense DUI. The defendant plead and admitted as part of the factual basis he had two prior convictions. The judge placed him on probation at sentencing. Almost 2 years later the State files a motion to revoke the defendant's probation. The court agreed and sentenced him to serve his remaining sentence. A notice of appeal was filed where the defendant then challenged the use of his two priors for sentencing purposes. The appellate court noted a defendant has 10 days from the date of a judgment is orally pronounced from the bench to file his notice of appeal. There is a exception to this general rule in the interest of "fundamental fairness" and only in those cases where an indigent defendant was either (1) not informed of the rights to appeal; (2) was not furnished an attorney to perfect an appeal; or (3) was furnished an attorney for that purpose who failed to perfect and complete an appeal. None of that was alleged in the appeal. The defendant also contends because of the city's charges were based on city ordinance than those priors were not violations of K.S.A. 8-1567. The defendant fails to note K.S.A. 8-1567(n)(2) which indicates prior convictions under a city ordinance may be utilized as a prior conviction. The appellate court dismissed the appeal.
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CASES AROUND THE COUNTRY
SCRAM Device is Scientifically Sound Technology
State of South Dakota v. Lemler
774 N.W.2d 272 S.D.,2009. (09/16/09)
To read the opinion:
State of South Dakota v. Lemler SCRAM or Secure Continuous Remote Alcohol Monitoring is a bracelet device worn usually just above the ankle that can detect whether a person has consumed alcohol through the testing of their perspiration. The testing results are transmitted via a radio frequency linked to a modem in the defendant's house. If alcohol is detected in the amount of 0.02 or greater the device will take readings every thirty minutes. These devices are primarily used for monitoring bond or probation orders. In this case the defendant was required to wear the device as part of his probation. He was ordered not to consume alcohol during his probation period and abstain from the use of products containing alcohol. The device indicated alcohol use for three consecutive days. The State filed a motion to revoke his probation. The defendant denied drinking and claimed he had used a graphite lubricant and starter fluid to clean out grain bins containing fermented grain and that is what the device detected. The South Dakota Supreme Court found the SCRAM device used fuel cell technology that is generally accepted for testing of alcohol in the system. The SCRAM device met the Daubert standard i.e., the methodology used has been verified through several different methods by several different scientists and is widely recognized as valid science within the scientific community. As for the defendant's probation violation, the Supreme Court did not disturb the lower court's ruling the defendant had violated his probation based on the results of the transdermal alcohol concentrations measured by the device over a period of time. These measurements ruled out any interferant that was suggested by the defendant. To read about how a Florida court ruled differently on the use of hairspray by a defendant see: Florida Ruling
DRE is a Scientific Valid Method
DRE or Drug Recognition Experts follow a very strict 12 step protocol to determine if a person is impaired with drugs. To become a DRE, law enforcement officers are required to participate in a very rigorous training program. Once they successfully complete the program they are constantly monitored and are required to receive continuing education on drug impaired driver issues. In this case, the defendant was stopped for operating a car without a headlight. The officer detected the odor of burnt marijuana. The defendant admitted to having smoked marijuana earlier in the day and exhibited signs of impairment ie. Droopy eyelids, bloodshot and watery eyes. The officer contacted a DRE. The DRE performed SFST's and concluded the defendant was under the influence. The defendant was placed under arrest and the DRE then proceeded to perform the 12-step protocol. A breath test indicated no alcohol present. The DRE concluded after his evaluation he was impaired. A urine analysis indicated the presence marijuana. The Nebraska Supreme Court concluded the DRE protocol was based on scientific principles designed to meet the specific needs of law enforcement. The protocol is generally accepted and the techniques used are accepted in medical communities for diagnostic purposes. Based on all of this, DRE protocol is a valid methodology to support the opinion of the DRE. A law enforcement officer with the training and experience offered by "drug recognition expert" certification is sufficiently qualified to testify, based on his or her evaluation that a suspect was under the influence of drugs. To read Kansas cases dealing with DRE protocols see State v. McHenry, unpublished136 P3d 964 2006 WL 1816305 (2006) Rev. Den. (2006) and State v. Brown unpublished, 174 P.3d 458 2008 WL 142119 (2008) |
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CASES AROUND THE COUNTRY (CONT.)
Officer's Personal Cell Phone Records-Relevant
State of New Mexico v. Ortiz  215 P. 3d 811 N.M. App., 2009 (08/13/09)
To read Opinion:
According to the New Mexico Court of Appeals a police officer's personnel cell phone records may be relevant during an investigation. This case began as a traffic stop. The car was observed failing to maintain it's lane, striking a curb and riding on the curb while pulling over. The defendant was eventually arrested for DUI. A discovery motion was filed by the defendant requesting "any communication between the officer and any dispatcher, police officers, or any other persons whatsoever" and "copies and access to evidence of all oral, electronic telephonic, or written communications made between officer and any other person during this incident." The stop was videotaped however there was an allegation that 6 minutes of video were missing. The State contended those six minutes came prior to the stop of the defendant and did not have anything to do with the defendant. Because of this alleged "gap" it raised questions as to what was going on and what information did the officer have. The defense claimed the "officer did not have an expectation of privacy of his cell phone records while on duty, on patrol, in a marked unit, during an emergency or arrest situation." The State was adamant the officer's records were not relevant and would not be released: "The officer has a constitutionally protected privacy interest in his personal property." The district court ordered the State to produce the records. The State in essence refused to do as the court ordered. The court eventually found the State's action in "bad faith" and intentionally "prevented the trial for going forward". The court found the State flaunted the court's order for simple discovery and the defendant had been prejudiced. The court granted the defendant's motion and dismissed the case with prejudice. The case was appealed by the State. The Court of Appeals noted "an on-duty police officer's personal cell phone may somehow be involved, the only way a defendant can determine if the cell phone records will assist in the preparation of his defense is to subpoena the officer's cell phone records and/or interview the arresting officer." The ruling of the district court stands and the case is dismissed with prejudice. This case will not be appealed.
Implied Consent Law in Oregon is Coersive
State of Oregon v. Machuca 218 P.3d 145 Or. App., 2009 (09/30/09)
 To read the opinion:
Oregon's implied consent law says anyone licensed to drive is considered to have consented in advance to any future breath, blood, or urine testing, should they ever be arrested for driving under the influence of intoxicants. It also states that if a driver tries to revoke that consent by refusing the tests, this refusal may be used as evidence in court. Indeed, refusing consent carries harsher penalties than driving drunk. A breath test showing .08 or higher typically results in a 90-day suspension, but refusing the test in the first place can stretch the suspension to a year. The law was designed to help police get drunk drivers off the streets. The defendant had been in a one car crash and was transported to the hospital. The officer arrived and found the defendant in a deep sleep and was slow to wake up. The officer asked the defendant several questions to evaluate his comprehension and explained that the defendant was under arrest for DUI and reckless driving. He gave the defendant Miranda and asked questions. He then read Oregon's implied consent law and the defendant agreed to take a blood test. The Oregon Court of Appeals concluded the consent obtained was procured through a threat of economic harm and loss of privileges. It was obtained only after defendant was given the warnings required by Oregon's implied consent law about the consequences of a refusal to allow a blood test. A consent obtained by the officer from the defendant was coerced by the fear of adverse consequences and is no excuse for not obtaining a search warrant. At the present time, all the cases currently pending in Oregon having a blood or breath test could lose the test results based on this ruling. This case is being appealed. |
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By Karen Wittman, KS-TSRP
Well it is time to say goodbye to another year, but it is also time to welcome in a new year; full of promise. Our ultimate goal never changes, to make Kansas roads safer.
 This past year has been no different. Kansas welcomed two new programs into its' training line up: A.R.I.D.E. and the DUI Bootcamp for Prosecutors. A.R.I.D.E., Advanced Roadside Impaired Driving Enforcement, is a course designed to help law enforcement detect individuals that are impaired by things other than alcohol. Two ARIDE classes were offered this past year with great success. Next year this course again will be offered. The first confirmed dates are Feb. 17, and 18th at the KHP academy. The training is FREE. If you are interested in becoming a DRE, and want to look at the information that you will be studying, or just want more tools in your tool box to help you detect impaired drugged drivers this is the course for you. To qualify you must be currently credentialed in SFSTs and be proficient. It is also strongly encouraged that prosecutors also attend. Prosecutors-you don't have to be credentialed or take a proficiency test. A number of prosecutors have already attended and found the training useful when they prepare for DUI-Drug trial. I strongly encourage both police and prosecutors to take advantage of this course. Be on the lookout for more ARIDE course dates.
As for the DUI Bootcamp, this also was a first in Kansas and was very successful. This course is designed for a prosecutor new to prosecuting DUI cases. This course will help you better prepare your case to present to a jury and deal with the challenges to the testing procedures. This coming year it will be offered again. More information on this course will be provided in the January edition of Street Legal. Stay tuned!! My resolve is to continue to find ways to improve. Opportunities abound in 2009 and I look forward to working with each of you in making Kansas a safer place to live and drive. | |
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