TSRP Newsletter

a. A driver may not enter into a diversion agreement in lieu of further criminal proceedings that would prevent such driver's conviction for any violation, in any type of motor vehicle, of a state or local traffic control law, except a parking violation, from appearing on the driver's record, whether the driver was convicted for an offense committed in the state where the driver is licensed or another state.

(1) The Commercial Motor Vehicle Safety Act of 1986 (CMVSA) was signed into law on October 27, 1986. The goal of the Act was to improve highway safety by ensuring that drivers of large trucks and busses are qualified to operate those vehicles and to remove unsafe and unqualified drivers from the highways.

(2) http:www.dotjobhistory.com/articles/CDLIS.asp

(3) Commercial Motor Vehicle Safety Act

(4) The National Driver register (NDR) is a computerized database of information about drivers who have had their licenses revoked or suspended, or who have been convicted of serious traffic violations such as driving while impaired by alchol or drugs.

Ethical Responsibilities (cont.)

It seemed pretty straight forward: a CDL holder would not be eligible for diversion no matter if they were operating a CMV or a Non-CMV. But it wasn't that simple. An Attorney General Opinion was requested in 2003 to answer questions concerning whether a CDL holder driving his own non-CMV vehicle could go diversion. The Opinion stated:

[T]he term "driver," as used in the Kansas Uniform Commercial Drivers' License Act, means any person who drives, operates or is in physical control of a commercial motor vehicle, in any place open to the general public for purposes of vehicular traffic, or who is required to hold a commercial driver's license; the term does not include a person who merely holds a commercial driver's license but does not otherwise fall within that definition. Diversion for driving under the influence of alcohol offenses is precluded for commercial "drivers," even though a diversion would appear on the driver's record. Plea negotiations or charging amendments that result in convictions for lesser or fewer traffic infractions or offenses than originally charged are not precluded.

This seemed to open the door for CDL holders driving a Non-commercial vehicle to obtain a diversion. The Attorney General opinion did recognize the purpose of the FMCSA in getting a clear picture of a CDL holder's driving record citing a Joint Explanatory Statement issued by Congress in conjunction with the MCSIA made Congressional intent clear regarding this issue:

The behavior of a CDL holder in operating vehicles other than CMV's is relevant to the CDL holder's fitness to operate a commercial motor vehicle.

Although the intent of Congress was clear; the intent of the Kansas Legislature was not. The Attorney General's opinion suggested:

These federal regulations and the applicable discussions strongly imply that the definition of "driver" in Kansas' statutory mirroring federal requirements should include "a person who holds a commercial driver's license" if the State is concerned about the loss of millions of dollars in the State Highway fund.

This Attorney General opinion was written in November 2003. No further action was taken on this statute and prosecutors have continued to struggle with it.
If a person was convicted of certain traffic violations the CDL holder could be disqualified from operating a CMV. Under CMVSA, a serious moving traffic violation is defined as(5):

Excessive speed of 15 miles per hour or more above the posted speed limit.
Reckless driving including, but not limited to, driving a CMV with wanton, willful disregard for the safety of persons or property.
Improper or erratic lane changes.
Following too closely.
A violation arising in connection with a fatal crash relating to traffic control devices.

Two convictions of serious moving violations within three years will result in a 60-day disqualification; three convictions within three years will result in a 120-day disqualification.

We all know that when a CMV is involved in a crash it causes massive destruction on a passenger vehicle. Prosecutors are also faced with the reality of the financial burden the loss i.e., disqualification of CDL can have on a person's livelihood. But isn't the safety of our highways more important? Isn't it our duty to ensure the safety of the people we represent? As prosecutor's we have the authority to set parameters of who gets a diversion. Shouldn't we keep in mind the reasoning behind the rules set forth by Congress and the Kansas Legislature?

(5) Table 2 to 49 CFR § 383.51

Ethical Responsibilities (cont.)

If the answers to the questions above are a resounding "YES" then the next issue should be easy. There is nothing in the federal legislation or the Kansas statute that would preclude the following:

Although some of these actions are not prohibited by the law; a prosecutor should understand by outright dismissing a good charge or amending a good charge they are in view of the spirit of the law "masking". The holder of a CDL's safety record has been altered. As noted above, keeping the safety of the citizens of Kansas as your top priority should preclude you from doing these types of things.

Currently our Legislature is looking at this issue again. HB 2482 (2010) states:

AN ACT relating to commercial driver's licenses; concerning diversion agreements; amending K.S.A. 2009 Supp. 8-2,150 and repealing the existing section.

Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 2009 Supp. 8-2,150 is hereby amended to read as follows: 8-2,150. (a) A driver or a holder of a commercial driver's license may not enter into a diversion agreement in lieu of further criminal proceedings that would prevent such driver's person's conviction for any violation, in any type of motor vehicle, of a state or local traffic control law, except a parking violation, from appearing on the driver's person's record, whether the driver person was convicted for an offense committed in the state where the driver person is licensed or another state.

(b) For purposes of subsection (a), a person shall be considered a holder of a commercial driver's license if the person was a holder of a commercial driver's license at the time the person was arrested or was issued a citation and shall remain a holder of a commercial driver's license even if the person surrenders the commercial driver's license after the arrest or citation.

(c) The provisions of this section shall be a part of and supplemental to the Kansas uniform commercial drivers' license act.

Sec. 2. K.S.A. 2009 Supp. 8-2,150 is hereby repealed.

Sec. 3. This act shall take effect and be in force from and after its publication in the statute book.

On March 5, 2010, the chief counsel of the Kansas Department of Transportation and the attorney with the Office of the Director of Vehicles, Department of Revenue, testified in support of the bill. They said current law allows the holder of a commercial driver's license (CDL) to, under certain circumstances, exchange a CDL for another class of driver's license between arrest or citation and conviction, enter into and complete a diversion agreement, and thereby "mask" most criminal and traffic convictions. After the diversion is completed, those drivers again get CDLs. They said this practice allows convicted CDL drivers to avoid restriction periods under federal law for certain convictions for unsafe driving, such as convictions for driving under the influence. Both also stated that passage of the bill is required, for the State, to be in substantial compliance with Federal Motor Carrier Safety Administration requirements.(6)

On March 24, 2010 this bill was referred to the Ways and Means committee. No matter if this law passes or not it should give a prosecutor a pretty good idea of how the KDOT and KDOR wish for these matters to be handled.

(6) Supplemental Note on House Bill No. 2484

PROSECUTORS (Heroes)
--REMEMBER YOUR DUTIES

ABA Model Rules of Professional Conduct

3.8 - Special Responsibilities of Prosecutor

Comment [1]:

" A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence."

ABA Standards for Criminal Justice

3-1.2(c): The Function of the Prosecutor

The duty of the prosecutor is to seek justice, not merely to convict.

National District Attorneys Association Prosecution Standards

1.1 Primary Responsibility

The primary responsibility of prosecution is to see that justice is accomplished.

From "Checkmates," episode 143, from season four of The Practice, Original air date 02/13/03

"There are heroes in this world. They are called district attorneys. They don't get to have clients, people who smile at them at the end of the trial, who look them in the eye and say "thank you." Nobody's there to appreciate the district attorney because we work for the state and our gratitude comes from knowing there's a tide out there, a tide the size of a tsunami coming out of a bottomless cess pool. A tide called crime, which if left unchecked will rob every American of his freedom. A tide which strips individuals of the privilege of being able to walk down a dark street or to take $20 out of an ATM machine without fear of being mugged. All Congress does is talk, but it's the district attorney who grabs his sword, who digs into the trenches and fights the fight, who dogs justice day after day after day without thanks, without so much as a simple pat on the back. But we do it, we do it, we do it because we are the crusaders, the last frontier of American justice, knowing if a man cannot feel safe he can never, never feel free."

razor

FHP:

Drive Lacked Razor Sharp Focus

Reprint from Keys News

As authorities nationwide warn motorists of the dangers of driving while texting, Florida Keys law enforcement officers add a new caution: Don't try to shave your privates, either.

Florida Highway Patrol troopers say a two-vehicle crash Tuesday at Mile Marker 21 on Cudjoe Key was caused by a 37-year-old woman driver who was shaving her bikini area while her ex-husband took the wheel from the passenger seat.

"She said she was meeting her boyfriend in Key West and wanted to be ready for the visit," Trooper Gary Dunick said. "If I wasn't there, I wouldn't have believed it. About 10 years ago I stopped a guy in the exact same spot ... who had three or four syringes sticking out of his arm. It was just surreal and I thought, 'Nothing will ever beat this.' Well, this takes it."

If that weren't enough, Megan Mariah Barnes was not supposed to be driving and her 1995 Ford Thunderbird was not supposed to be on the road.

The day before the wreck, Barnes was convicted in an Upper Keys court of DUI with a prior and driving with a suspended license, said Monroe County Assistant State Attorney Colleen Dunne.

Barnes was ordered to impound her car, and her driver's license was revoked for five years, after which time she must have a Breathalyzer ignition interlock device on any vehicle she drives, Dunne said. Barnes also was sentenced to nine months' probation.

Barnes and Charles Judy were southbound in her Thunderbird at 11 a.m. when they slammed into the back of a 2006 Chevrolet pickup driven by David Schoff of Palm Bay. His passengers were a man and two women; the latter were treated for minor injuries at Lower Keys Medical Center, FHP spokesman Alex Annunziato said.

Schoff had slowed to about 5 mph to make a turn when the Thunderbird hit him, traveling about 45 mph, which was within the speed limit, Dunick said.

Barnes allegedly drove another half-mile, then switched seats with Judy, who allegedly claimed to be driving, Annunziato said.

"She jumps in the back seat and he moves over," Dunick said. "It was like the old comedy bit, 'Who's on first?' "

Burns on Judy's chest from the passenger-side airbag deploying belied their story, Dunick said. The airbag in the steering wheel did not deploy, he said.

Troopers charged Barnes with driving with a revoked license, reckless driving, leaving the scene of a wreck with injuries and driving with no insurance. Judy was not charged.

Barnes faces a maximum of a year in jail if found guilty of violating her probation due to the wreck, Dunne said.

"My phone has been ringing off the hook all day, and I know there's a funny side to this, but it's also deadly serious. This is a scary road and a lot of bad wrecks are caused by dumb stuff like this," Dunick said. "It is unbelievable. I'm really starting to believe this stuff only happens in the Keys."

Florida deputy Uses Google Earth to Make Arrest

Satelite picutres helped locate the suspect

Reprinted from Associated Press

PACE, Fla. - A Florida Panhandle deputy was able to track down and arrest a man on charges of illegally dumping a boat near his home with a surprising tool: satellite pictures provided by Google Earth.

Deputy Gregory Barnes used the images after finding an 18-foot boat dumped in an undeveloped subdivision about 15 miles north of Pensacola.

Google Earth shows archived satellite and aerial images of communities across the world. Barnes used it to look at the surrounding area and saw a fuzzy image of the vessel at Dwight Everett Foster's home.

Authorities say Foster admitted dumping the boat and his son later removed it.

Police say it cost $18 to dispose of the boat at a landfill. Foster faces a $5,000 fine and up to five years in prison.

Case Updates

ADMINISTRATIVE HEARING

DC-27-mailing-administrative assistant

Byrd v. KDOR 221 P.3d 1168, 2010 WL 143502 (01/15/10)

Defendant had his blood drawn in reference to a DUI. When the results were received by the Deputy he filled out the DC-27 and directed an administrative assistant with the sheriff's department to mail the form to the defendant. This was per procedure of the department. The administrative assistant could not remember mailing the form. There was no dispute the DC-27 form was mailed to the defendant and the defendant received it. The defendant argued he was not properly served because the deputy failed to mail the form himself. The hearing officer suspended his license. The district court reversed the hearing officer ruling and KDOR appealed to the court of appeals. The appellate court reviewed the doctrine of substantial compliance. Substantial compliance is "compliance in respect to the essential matters necessary to assure every reasonable objective of the statute." The court also noted K.S.A. 8-1001(v)(2008) which states: "This act is remedial law and shall be liberally construed to promote public health, safety and welfare." The court concluded: the administrative assistant's act of placing the DC-27 form in the mail was essentially no different than if the deputy had placed the form in the mail himself. The district court's ruling is reversed.

ARTICULABLE SUSPICION-vehicle not in motion

Driver standing next to car-activation of emergency equipment-no parking signs

State v. Lyons 2010 WL 174075 (01/08/10)

***UNPUBLISHED***

This is a state appeal based on the judge suppressing the evidence. An school resource officer saw a car parked a considerable distance from the curb on a public street in front of no parking signs near a school. The defendant was not in the vehicle but standing outside stretching. The officer found this suspicious because he was not in running clothes. The officer then stopped his patrol car in the road and activated his emergency lights and approached the driver. There was no discussion about his inability to park the vehicle correctly. While speaking with the driver the officer could detect the odor of alcohol but the driver explained he is diabetic and that might be the smell. At that time the officer did not observe any signs of impairment. However due to the odor the officer testified it became a DUI investigation. The driver was unsuccessful in performing the SFSTs and he refused the PBT. The defendant was arrested and charged with DUI but no parking citations. The court suppressed the evidence. The appellate court noted at the time the officer activated his emergency lights this was seizure and not a voluntary encounter. The officer never addressed the issue about the vehicle and therefore his only purpose was to contact the defendant. There was no indication of illegal activity. The encounter was neither voluntary nor based upon reasonable suspicion of criminal activity and therefore there is substantial evidence to support the court in suppressing the evidence.

PROBABLE CAUSE TO ARREST

Numerous traffic infractions-SFSTs indicated impairment

State v. Bohnen 2010 WL 173953 (01/08/10)

***UNPUBLISHED***

A trooper observed a vehicle over 7 miles. He observed 87mph in a 70 zone, following to close, failing to maintain a single lane and straddling the line. Upon approach an odor of alcohol was detected. SFSTs indicated impairment however on the one leg stand the only clue observed was swaying. The defense focused on City of Norton v. Wonderly 38 Kan.App.2d 199(2007). The defendant noted he failed only one field sobriety test (walk and turn) and passed the one leg stand test. The performance on the tests did not establish PC he was DUI. The court noted SFSTs are not in isolation rather the court must consider them in conjunction with the other factors known to the trooper. The court looked to State v. Shaw 37 Kan.App.2d 485(2007) although performance on the SFSTs in one thing, the defendant's ability to operate his vehicle also needs to be taken into account. The district court decision affirmed.

Case Updates

PBT

Manufactures instructions-15 minute deprivation

Kirby v. KDOR 2010 WL 173957 (01/08/10)
***UNPUBLISHED***
The underage defendant had contact with the police around 2 a.m. on a separate matter and was determined to have been drinking. The defendant was given a ticket and allowed to leave, but was warned not to operate a vehicle, his jeep which was close by, since his BAC was .08. Later around 4 a.m. one of the officers who had prior contact saw the jeep fail to stop at a stop sign and began pursuit. The officer could not tell who was driving. The car turned into a parking lot and the officers found it locked and parked. The officers located the defendant. During a licensing hearing the PBT was admitted over the objection of the defendant. The appellate court noted the K.A.R.28-32-6(c) states the screening device must contain specific instructions provided by the manufacturer describing the proper operating procedure in clear, concise and accurate language. K.A.R. 28-32-7(a) states the PBT is to be "operated according to the manufacturers' written directions. The PBT used by the officer did not require a specific 15 min deprivation but one in which the officer upon inquiry: if the defendant states he has not consumed within 15 minutes and the officer believes he has not had any alcohol in his mouth the test could be given. In this case, the defendant stated he had not consumed for about 40 minutes. In this instance, the appellate court found the officer did not violate the manufacturer's instructions. The defendant cited City of Concordia v. Ellis (no. 95,745 unpublished case 2006) The court found no merit. The arrest was valid.

ARTICULABLE SUSPICION-Vehicle in Motion

Weaving in lane-Marx-video

State v. Rudolph 2010 WL 348274 (01/22/10)
***UNPUBLISHED***
Trooper observed vehicle failing to keep within its lane of traffic. Following the vehicle for approximately 1 mile and caught on video swerving a number of times within the lane. The trooper indicated there was a light rain falling that evening but the weather conditions would not have affected the driver's driving pattern. There was nothing on the video showing that it was impracticable for the defendant to maintain his single lane of travel. The defendant filed a motion to suppress. The appellate court cited State v. Field, 252 Kan. 657 (1993) a driver's actions of repeatedly weaving within the lane of traffic may constitute reasonable suspicion for an officer to stop and investigate even when the driver did not commit a clear violation of any law. Trooper indicated he believed the driver was intoxicated. He indicated he was concerned about the safety of the other drivers on the road and he either needed to stop the defendant or he was going to end up working an accident. The court reviewed Marx and found there was more than just the failure of K.S.A. 8-1522(a) that the defendant may have committed. Conviction affirmed.

IMPLIED CONSENT

Reasonable grounds to believe-crash-medical personnel statements

Poteet v. KDOR---P3d---, 2010 WL 198510 (01/15/10)

Trooper arrived at the scene of a crash. The driver was being loaded onto a helicopter for transport to the hospital. Looking over the scene the trooper concluded the driver had driven through a field and a barbed wire fence before it rolled and rested on its passenger side. The trooper had another trooper go to the hospital to obtain blood which was taken and indicated 0.17. The trooper indicated it is the Highway Patrol's policy to get blood when a serious crash occurs. The trooper testified he suspected she was driving under the influence of alcohol based solely on the medical personnel's statements. The defendant claimed the trooper did not have reasonable grounds to believe she was under the influence. The Certification (DC-27) sent to the DMV indicated only "an odor of alcohol". The court cites Angle v. KDOR 12 Kan.App.2d 756(1988) the facts contained in the certificate may be supplemented by testimony and all of the factual information available to officers when the test was requested may be considered when determining whether the officers had a sufficient basis for the request. Also noted-probable cause determinations may be made based upon reliable hearsay information and information provided by on-the-scene emergency personnel is sufficiently reliable. State v. Landis 37 KanApp.2d 409 (2007). The trooper never cited the facts of the crash as a basis for his suspicion but the facts (although not cited on the certification) do not eliminate those facts from proper consideration. Reversed and remanded with directions.

Case Updates

IMPLIED CONSENT

Reasonable grounds to believe-claim of consumption after collision

Schepmann v. KDOR 2010 WL 445887 (01/29/10)
***UNPUBLISHED***

Deputy found defendant passed out in the driver seat of a pickup truck. Deputy smelled alcohol and asked defendant if he had consumed alcohol. The defendant did not reply. The defendant claimed he hit a deer. The Defendant failed SFSTs and was arrested. Subsequent BAC was determined to be 0.177. Defendant at the DL hearing claimed he had one beer two hours before he drove. He then claimed after the collision he consumed 5-7 beers. The defendant claimed the deputy based his observations on the post-driving alcohol and that his "intervening alcohol" consumption could not be considered in determining the existence of reasonable grounds. The hearing officer and court suspended his license and defendant appeals. The appellate court states the deputy's question concerning his alcohol consumption was ignored by defendant - the defendant's subsequent claim he consumed alcohol after driving cannot negate the reasonableness of the officer breath test request. Even if the defendant had responded to his consumption after the fact the appellate court stated we still would confirm the courts suspension order because the district court did not believe the defendant when he stated he had consumed only one beer before the crash. The district court noted: "he must have consumed a lot more than (one beer) before." The suspension is affirmed.

IMPLIED CONSENT

Holder of a commercial license-not in a CMV

Tubbs v. KDOR 2010 WL 445895 (01/29/10)
***UNPUBLISHED***

Once again the defendant, who was not driving a CMV when intoxicated, wants the officer to read the notices concerning a CDL license when it is not required by statutes. The defendant was read the implied consent notices but not the CDL notices. The defendant tested over a 0.08 and this was his second occurrence which would disqualify him for CDL eligibility for LIFE. He was not told this at the time he was requested to take the test. Until such time as the legislature chooses to amend the required implied consent notices in such a manner there is no requirement that an individual possessing a CDL but driving a noncommercial motor vehicle must be advised of the potential ramifications under K.S.A. 8-2,142 of failing or refusing a chemical breath test. Suspension affirmed.

SENTENCING-FINES/FEES/PENATIES

Abuse of discretion-no probation

State v. Weaver 2010 WL 446049 (01/29/10)
***UNPUBLISHED***
Defendant was sentenced to 1 year and $2500 fine on his sixth DUI conviction. Defendant claimed court abused its' discretion. A sentence within the statutory guidelines will not be disturbed on a appeal if it is within the trial court's discretion and not a result of partiality prejudice, oppression, or corrupt motive. No reasonable person would agree then abuse of discretion will be found. The defendant agreed this was his sixth DUI but he claimed he was having medical issues and had recently undergone treatment for melanoma. Defendant admitted he was able to obtain treatment through the jail but there would be delays. The appellate court stated a reasonable person would agree not to grant probation. The defendant prior convictions did not dissuade him from further conduct and his jail sentence would not deprive him of his medical treatment. Sentence affirmed.

ADMINISTRATIVE HEARING

Bankruptcy proceeding-license suspension for failing to pay child support

In re Penaran --- B.R. ----, 2010 WL 465849 (Bankr.D.Kan. Feb 03, 2010) (NO. 09-11043)
***UNPUBLISHED***

Illinois Department of Healthcare and Family Services (IHFS) suspended the driver's license of the defendant for failure to pay child support. It was also noted the City of Garden City in Kansas was charged post-bankruptcy petition with two counts of DWS. The charges were amended and he was fined $500 and court costs. The defendant brings this action claiming the states must honor the stay in place by filing bankruptcy and no action could be taken on his license. The debtor's motion also raises the suspension of debtor's Kansas driver's license as grounds for holding IHFS in contempt for violating the stay. The bankruptcy court noted: Even if the alleged Kansas license suspension were due to the debts owed the Bankruptcy Code allows such suspensions. Section 362(b)(2)(D) expressly excepts from the ambit of the stay withholding, suspending or restricting a driver's license "as specified in section 466(a)(16) of the Social Security Act." (See 42 U.S.C. § 656(a)(18)) That section mandates that states implement administrative means of withholding such privileges as driver's license to non-custodial parents who are default in their support obligations. IHFS is not in contempt and not violating the stay.

Case Updates

OPINION EVIDENCE

Officer may testify to whether person incapable of safely driving

State v. Germann 2010 WL 481268 (02/05?10)
***UNPUBLISHED***
During jury trial the officer indicated Germann was under the influence of alcohol to the extent he was not capable of driving safely. He was found guilty. Germann appeals claiming the officer commented on the ultimate issue for the jury and this was improper. In State v. Kendall 274 Kan. 1003 (2002) the Supreme Court held the officer did not opine the defendant was guilty of the crime and that was admissible. It was irrelevant whether the evidence was characterized as expert or lay testimony because either type of testimony is acceptable. Court also noted City of Dodge City v. Hadley 262 Kan 234 (1997) There was a fine argument also.

PBT
ANONYMOUS TIP/INFORMANT

PBT indicated under 0.08-"legal to drive"-continued with the investigation

State v. Barner 223 P.3d 837 (02/12/10)
***UNPUBLISHED***
Officer received a reporting of a reckless and possibly impaired driver. Officer located the vehicle and observed it cross over the center line once and fog line twice. The vehicle was stopped and the driver indicated he had not been drinking. The Officer could NOT detect an odor of alcohol. Barner had slurred speech and trouble retrieving his DL. The officer asked the driver to submit to a PBT. The PBT indicated 0.07. Barner then stated he did have one beer. The Officer informed Barner he was "legal to drive" but told him to wait while he contacted his Sargent. SFST were then administered and based on all information Barner was arrested. A subsequent BAC indicated 0.279. A motion to suppress was filed on two grounds-once the officer had completed the check of his DL and registration he should have been free to go OR after requesting the PBT and he was "legal to drive" the stop should have concluded. Court indicates 'totality of the circumstances' is the guide and clearly the officer had enough information to request a PBT even though he could not smell and odor of alcohol. Also the court noted that although the officer indicated he was "legal to drive" a blood alcohol content below 0.08 does not immunize a driver from a DUI. The result of the PBT did not mandate a course of action for the officer to follow-Officers are afforded the latitude to broaden their inquiry based on newly acquired information citing State v. Morlock 289 Kan . 218 (2009)

PROTOCOL

Officer did not list each step in the protocol

State v. Lukens 2010 WL 481281 (02/05/10)
***UNPUBLISHED***
The arresting officer was certified to run the Intoxilyzer 5000. Testimony was the officer followed the proper protocol and administered the test. The test indicated the defendant was 0.135. There was extensive cross-examination however defense counsel did not inquire as to any of the protocols. On appeal defendant claimed the proper protocol was not followed because the officer failed to enumerate each step of the protocol and affirmatively testify that he performed each step. The officer's testimony lacked specificity. The court noted once uncontroverted evidence is admitted that the officer followed the protocol that evidence constituted substantial evidence. The appellate court does not reevaluate the credibility of the witness. Affirmed.

Case Updates

PBT

Use of refusal at trial-no objection

State v. Angel 2010 WL 653124 (02/19/10)

***UNPUBLISHED***
The defendant refused all SFSTs, PBT and evidentiary breath test. During trial the officer testified the defendant refused the PBT. No comments were made by the prosecutor during closing arguments about his refusal to take a PBT. The defendant cites Wahweotten 36 Kan.App.2d 568 (2006) claiming the refusal of the PBT is inadmissible against a charge of DUI. The defendant however did not object during the testimony by the officer and the court found this was not proper before the court and found the issue was not preserved. There was an issue concerning about attorney's fees that was remanded.

SENTENCING-FINES/FEES/PENATIES

Error in sentencing-no showing

State v. Creed 214 P.3d 1226 (08/28/09)
State v. Green 2010 WL 445701 (01/29/10)
***UNPUBLISHED***
Defendant plead to 4th or subsequent DUI. Judge sentenced him to 12 months with 12 months post-release and $2500 fine. The defendant claimed the court erred. The Court of Appeals stated the sentence was within the statutory guidelines and the defendant did not show partiality, prejudice, oppression or corrupt motive. Affirmed.

OPERATE/ATTEMPT TO OPERATE
JURY INSTRUCTIONS
ANONYMOUS TIP/INFORMANT

Denied driving-keys in the ignition-car running

State v. Starbird 2010 WL 744803 (02/26/10)
***UNPUBLISHED***
An identified citizen called in a drunk driver with description of vehicle and license number. An officer found the vehicle 3 to 4 minutes later parked in a driveway of a residence, which was the defendant's. The vehicle's lights were on and the engine was running. The defendant was seated in the driver's seat and when he noticed the officer he took the keys from the ignition and threw them on the floor. Defendant was unable to remove his DL from his wallet and could not maintain his balance. The defendant noted many times he was not driving. Later the officer went to the door to give the occupants the keys to the vehicle. Defendant's wife and daughter came to the door appearing in bed clothes and looking like they had been sleeping. The defendant was charged in the alternative operating or attempting to operate. Jury instructions mirrored this charge. Defendant claimed the instruction was erroneous because it provided alternative means even though the State presented very little evidence the defendant was "attempting to operate". The Court of appeals cites State v Stevens 285 Kan. 307 (2007) and stated there was sufficient evidence to show the defendant operated and attempted to operate. They noted in that placement of keys in ignition constituted overt act necessary to convict defendant of DUI. There was also an argument concerning 60-455 evidence where defendant slapped the implied consent out of officers hand constituting a battery on LEO and an Allen instruction.

Case Updates

OPINION
ATTORNEY ACTIONS
JURY INSTRUCTIONS

SFSTs defendant did not take them-not multiple acts case

State v. Doyle 2010 WL 744796 (02/26/10)
***UNPUBLISHED***
Defendant committed at least eight traffic infractions while fleeing from the police. He was physically removed from the vehicle. Officers noted: odor of alcohol, poor balance, admitted to drinking. The defendant was arrested. While at the station he refused to perform SFSTs and refused the evidentiary breath test. The officer testified he felt the defendant could not safely operate a vehicle. During closing arguments the defendant claimed he did not perform the SFSTs cause he was already under arrest. The State countered with "He refused to show that he wasn't under the influence" During appeal the defendant claimed the officer could not express his opinion. The court cited State v. Kendall 274 Kan. 1003 (2002) and City of Dodge City v. Hadley 262 Kan. 234 (1997) whether an officer's opinion is expert or law testimony matters little since either type of testimony is acceptable. The defendant also claimed burden shifting during closing argument. Citing 16 Kan.App.2d 585 (1992) a defendant's refusal to submit to field sobriety testing is admissible for purposes of proving DUI. Lastly felony flee and elude is NOT a multiple acts case and the jury does not have to be unanimous on the traffic infractions only that he committed 5 of them.

OPINION
ATTORNEY ACTIONS

Officer stated driver impaired-state argued officer said she was DUI

State v. Huffmier 2010 WL 481257 (02/05/10)***UNPUBLISHED***

The officer testified during trial the defendant could not safely operate a vehicle. This is permissible. However during closing arguments the State commented: It was his opinion (officer's) that she was under the influence, that she should not be driving a vehicle, and it should be yours" The court noted the State could comment on the defendant being "impaired", "drunk", "that she should not be driving a vehicle" however claiming the officer's opinion was she was "driving under the influence" is arguably equivalent to saying she was guilty of the offense which is not allowable. However the officer never testified to this, and the prosecutors statements are not evidence and the jury in this case was so instructed. There was also an argument about admissibility of irrelevant and prejudicial evidence relating specifically to the parenting skills of the defendant that are extremely specific to this case and will not be discussed here.

Case Updates

OPERATE OR ATTEMPT TO OPERATE-car not moving
MIRANDA

Passed out behind the wheel-invoked his right not to answer

State v. Moffett 2010 WL 653097 (02/19/10)
***UNPUBLISHED***
Moffett was seated in his vehicle in the middle of the street with the engine running and his foot on the brake. He had either fallen asleep or passed out at the wheel and was unable to successfully operate the vehicle at that point. He had difficulty waking up. During the defendant's case-in-chief defendant suggested to the officer "you never asked him how much he had to drink." The officer responded I didn't ask on the stop. After he was Mirandized he refused to answer any questions. The defendant moved for a mistrial and it was denied. On appeal defendant claimed the court should have granted a mistrial. The court stated the defendant opened the door knowing based on the officer's report he invoked- and the evidence was so overwhelming there was no prejudice. The defendant also argued the DUI jury instruction concerning operate or attempt to operate. The court indicated this is a alternative means case where a single offense may be committed in different ways there must be jury unanimity as to guilt for the crime charged but not as to the particular means by which the crime was committed citing State v. Stevens 285 Kan 307 (2007). In this case there was ample information to support both. Affirmed.

BLOOD

HIPPA-physician/patient privilege-statements of defendant

State v. Weilert 225 P.3d, 2010 WL 744217 (03/05/10)

Defendant was taken to the hospital due to injuries he received in a motorcycle crash. The officer suspected DUI and requested a blood draw. The defendant refused. The officer went to the hallway to finish his paperwork and overheard the defendant request a blood draw for his own medical purposes. He also heard him state he had consumed six hard-alcohol drinks prior to the crash. A court order was eventually obtained for the blood results. The defendant requested the blood results be suppressed as well as his statement to doctors based on the physician patient privilege and HIPPA. The court suppressed; the State appealed. The court found K.S.A. 60-427(b) provides that the physician-patient privilege would not be available in DUI cases. It also determined HIPPA does not prohibit the disclosure of information by court order and even if HIPPA prohibited disclosure Kansas does not apply the exclusionary rule to preclude admitting the information into evidence city State v. Yenzer 40 Kan.App.2d 710(2008) The court went on to say by eliminating the physician-patient privilege in DUI cases the legislature has indicated its intention to leave no hurdle to admitting test results that provide evidence of a driver's alcohol consumption. See State v Mendoza20 Kan.App.2d 541 (1995) As to the statements since the physician-patient privilege does not apply these statements are also admissible.

View From the Fast Lane

By Karen Wittman

KS-TSRP

kstsrp@gmail.com

785.230.1106

I don't think it is a coincidence that April is Alcohol Awareness Month. As the weather turns warmer and entices you outside, young people are drawn out into fields, backyards and garages for parties. These parties sometime involve alcohol. All across Kansas we are seeing more and more adults becoming aware of the hazards of our young people drinking. Some unfortunately are reading headlines of our youth being killed or hurt. Some are attending town hall meetings. Some are reading about party patrols shutting down a party. Whatever has got their attention; we need to keep it!
The numbers are staggering:

Kids who begin drinking before the age of 15 are 4 times more likely to become alcohol dependent.

Youth under the age of 21 accounted for 25% of all treatment admissions for alcohol abuse.

Underage drinking is a leading contributor to death from injuries which are the main cause of death for kids under the age of 21.

So how do we keep their attention? LEOs: Enforce the laws dealing with underage drinking. Write tickets --make it clear in your community the police are not going to turn a blind eye to this. PROSECUTORS: Prosecute the offenders. Make sure we are not just requesting a fine and calling the next case. Prosecutors should be requesting an alcohol evaluation, to be paid by the offender, to determine if this incident was a onetime experiment or if the child is in need of alcohol information or treatment. Prosecutors should not just order the evaluation but make sure to follow up that they DO what the evaluation suggestions. Don't have the mentality: Kids will be kids. It wasn't right then and it isn't right now. It seems instead of the party breaking out into a fistfight; now it is a gun battle. The only drink of choice back then was beer or hard liquor. Today there are so many fruity alcoholic drinks available at a reasonable price, which more kids are tempted to drinking. There are a lot more cars on the road with the potential for serious injuries.

So make April special this month. Do your part to stop underage drinking in your community.