December, 2011 Volume 4 Issue 3
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Kansas Lethal Weapon was a Crash Course!
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Coming Events
_________________ Johnson County Academy-ARIDE November 28-29, 2011 _______________ NAPC Winter Conference December 5-8, 2011 The Greenbriar, White Sulphur Springs, WV ________________ Reno County--SFST Refresher In-Service December 7, 2011 South Hutchinson Police Dept. __________________ SFST Basic Class December 12-14, 2011 Lawrence PD _______________ DRE In-Service December 14, 2011 Kansas Highway Patrol Training Academy ________________ DUI Bootcamp for Prosecutors May 15-16, 2012 KHP Academy ________________ Lifesavers Conference 2012 June 14-16, 2012 Walt Disney World Swan and Dolphin Orlando, FL ________________ |
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By Karen Wittman
 | | Prep-Getting Cadillac ready troopers Frank and Bo. |
Prosecutors and law officers from around the state gathered together at Crisis City in Salina and wrecked a couple cars. It wasn't an accident. The collision was part of a course aimed at helping prosecutors work with law enforcement on serious fatal and near fatal cases. The three and a half day course was designed to help law enforcement do a thorough investigation of the crash and how prosecutors can use that information to present the best case possible.
 | | Just after Impact--Day of Crash |
Sixty-eight (68) participants, of which 17 were prosecutors, had a unique opportunity to watch a crash while standing only a few feet from it. A Cadillac, while traveling 37 mph, struck a Corsica broadside. There were crash dummies in the Corsica so participants could see how unrestrained occupants fair in that type of collision. After the crash, attendees visited various stations talking about various aspects of a crash. The use of the total station which mapped the observed crash, the use of skid and yaw marks left to determine speed and the use of witness statements in putting it all together were some of the topics.
 | | Classroom--John Kwasnoski |
Participants also got lectures on how to approach the information for court purposes. John Kwasnoski, professor emeritus in Forensic Physics and crash reconstructionist, instructed them on different speed equations, drag factors, and angle or point of impact.
This course was a joint effort between the Kansas Department of Transportation, Kansas Highway Patrol and the Kansas Attorney General's Office.
I could not have offered this course if it wasn't for the Kansas Highway Patrol's CHART (Critical Highway Accident Response Team). They were instrumental in doing all the work for the outside activities to be such a success. They worked diligently weeks before the event to "work out the bugs" for the crash and all the outside activities. |
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I am thankful to Captain Turner, in charge of CHART, and Lt. Terry Kummer for their awesome leadership for this event. Steve Parker from Overland Park Police Department, Mitch Soden from the Topeka Police Department, KHP Lt. John Smith and Tech Trooper Rod Knopp were also instrumental in presenting. I am also thankful for my planning team consisting of Darian Dernovish, KHP; Greg Benefiel, DGCO DA Office, Jessica Domme, SNSO DA Office, Jill Kenney, JOCO DA Office and Will Hurst JOCO DA Office (formerly FRCO Attorney Office).
 | | AG Derek Schmidt and Colonel Ernest Garcia |
 | | Topeka Police Department Officer Mitch Soden giving instruction on witness statements |
 | | Attendees seeing the PBBT in action |
It truly is vital for prosecutors and law officers to work together and understand all the "science" that is used in these types of cases. This event helped achieve that goal.  | | Participants working together in groups to figure out the hit and run exercise. |
 | | Tech Trooper, Craig Presley giving instruction on total station |
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CASE UPDATES
PRIOR OFFENSES
Old PSI used to prove priors
State v. Bryles
***UNPUBLISHED*** Bryles pleads guilty and was sentenced on a 4th DUI. The PSI noted 11 prior DUI convictions. Bryles objected to several entries including four DUI convictions in Arkansas. The State produced a 1999 PSI from Wyandotte County, which included the two Arkansas convictions. The judge in the 1999 Wyandotte case had to take into account those priors from Arkansas to sentence defendant. K.S.A. 21-4715(c) states "if an offender challenges his or her "criminal history," which has been previously established, the burden of proof shall shift to the offender to prove such offender's criminal history by a preponderance of the evidence". The judge in this case found the Wyandotte County PSI was previously established and the burden shifted to the defendant. The defendant presented no evidence to challenge the inclusion. The appellate court found the district court correct in that the burden shifted to the defendant due to the establishment of prior criminal history and Bryles failed to present anything to show they should not be included. Affirmed. 
FINES/FEE/PENALTIESCommunity Service-Not within one year State v. Grebe --- P.3d ----, 2011 WL 5110258 Oct 28, 2011 Grebe was charged with a number of crimes in many cases, of which included one 3rd offense DUI and two 4th Offense DUIs. The judge sentenced the defendant to a total of 59 months in jail for all the charges he plead. The judge assessed $1500 for the 3rd and two $2500 for the 4ths. The judge never considered community service for the payment of the fines as required by K.S.A. 8-1567(j) and State v. Copes 290 Kan. 209 (2010). The defendant appealed. The appellate court noted in K.S.A. 8-1567(j) "the community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court." Due to the statutory requirement the community service must be performed within one year or less The community service option was not available to Grebe i.e., he will be incarcerated for approximately five years. There was no error in imposing such fines without consideration of a statutory option that was clearly unavailable to Grebe. There was an Apprendi issue in the case. Affirmed.
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CASE UPDATES
REASONABLE SUSPICION-VEHICLE IN MOTION
Failed to dim lights-definition of oncoming vehicle
State v. Peach Slip Copy, 2011 WL 4440184 September 23, 2011
***UNPUBLISHED***
Officer had parked his patrol car on the shoulder of the road near an intersection. The engine was running. The officer could not remember if his headlights were on or just the parking lights. As Peach approached the parked cruiser, he did not dim the high-beam headlights on his car. The Officer stopped Peach for failing to dim lights. The defendant was later arrested for DUI. Peach filed a motion to suppress stating officer did not have grounds to stop the vehicle. The district court granted the motion. K.S.A. 8-1725(a) states a driver must dim lights when approaching "an oncoming vehicle within 500 feet". The court looked to the common meaning of "oncoming" and determined it required movement forward. In this case the officer's cruiser was not "oncoming" when Peach drove by and therefore Peach was not required to dim his lights. The State attempted to argue the "good faith" exception noting the officer objectively reasonably misinterpreted the statute. It was noted "an officer's mistake of law alone can render a traffic stop violative of the 4th amendment". Affirmed. 
OPERATE OR ATTEMPT TO OPERATE Started the engine-"a comfortable place to sleep" State v. Stottlemire Slip Copy, 2011 WL 4357860 September 16, 2011 ***UNPUBLISHED***
Officer responded to a report of a suspicious vehicle parked in a residential driveway. Upon arrival he found a SUV with its lights on and engine running. Slumped in the driver's seat was Stottlemire. It took nearly 20 minutes to get Stottlemire awake. Stottlemire admitted to drinking, admitted to driving, and had difficulty maintaining her balance. She was arrested. She was not able to stand to do SFSTs. Stottlemire testified she had not driven but had been driven home by a friend but her front door key would not work. She then returned to the SUV and started the engine and went to sleep. The argument was the State established she was intoxicated but had only established that she used "her vehicle as a comfortable place to sleep" and not that she operated or attempted to operate. The appellate court noted: the officer observed Stottlemire sitting in the driver's seat with the key in the ignition and the motor running. She testified she started the engine. An attempt to commit a crime does not require much effort. State v. Stevens 285 Kan. 307(2007) It is not necessary to show movement of the vehicle to establish an attempt. State v. Fish 274 Kan. 204(1980). There was sufficient evidence to support her conviction for operating or attempting to operate. Affirmed.
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View From the Fast Lane 
By Karen Wittman
I had the opportunity this last week to attempt to clean out my office. It is a daunting task; if you have ever been to my office you know what I mean. As I was cleaning I came across a folder entitled "Proposal for Kansas Traffic Safety Resource Prosecutor". It was my initial materials I submitted to KDOT to get this job. The proposal was a plan for five years, outlining what I could do for KDOT and the State of Kansas. During the time I was preparing it, I can remember I had no idea what I was doing. I had never prepared something like that before. Four years later I think I am kind of getting the hang of it. In the proposal, I wished to accomplish:
-Publish a newsletter called "Street Legal"
-Develop Training for law officers and prosecutors to work together to deal with Fatal Crashes
-Do statewide presentation on Successful DUI investigation
-Provide technical assistance to Law Enforcement and Prosecutors
So far so good with those, I think, however there are still some things I have yet to accomplish:
-Get a Frye Hearing on the admissibility of HGN
-Work on Getting a true DUI Court in Kansas
 | | Not my messy office |
Well I have one more year on this five year project and I am looking to all of you to help me work to get these done. I am also looking to see if there is something else you wish for me to do. I am always open to suggestions that will help us all better protect our roadways whether in enforcement or prosecution. Please feel free to drop me an email or give me a call to let me know what you would like to see accomplished. I look forward to this fifth year and ready to take on the new challenges.
I am in hopes all of you will look to this next year and do your best to make Kansas a safe place to be!!
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