CRIMINAL REFUSAL AND OTHER FUN STUFF By Karen C. Wittman, Assistant Attorney General Kansas Traffic Safety Resource Prosecutor A Program of the Kansas Department of Transportation

Transcription

CRIMINAL REFUSAL AND OTHER FUN STUFF By Karen C. Wittman, Assistant Attorney General Kansas Traffic Safety Resource Prosecutor A Program of the Kansas Department of Transportation BOOK ON LINE‐ http://ktsro.org/ktsrp‐dui‐manual REFUSAL CHART: http://www.ktsro.org/files/TSRP‐SB‐60‐FLOW‐CHART.pdf EMAIL: [email protected] PHONE: 785‐230‐1106 What is a refusal?
K.S.A. 8-1013(i) person's blood, breath, urine or other bodily substance, other than a preliminary
screening test (Not a PBT), in accordance with this act, and includes refusal of any such test on a
military reservation.
Virtually any words or conduct indicating anything but unequivocal consent has been deemed a refusal.
State v. Fritzemeier, unpublished, 162 P.3d 66 (2007)
McRoberts v. KDOR 17 Kan. App. 2d 680, 843 P.2d 280 (1992)
Brummet v. KDOR unpublished, 2012 WL 687980 (02/24/12)
Driver's inability to provide breath sample when driver belched, coughed, sweated and felt queazy
during four attempted observation periods, constituted “refusal” to take breath alcohol test, absent
showing that driver's failure to complete test was due to medical condition. Blood or breath alcohol
test refusal does not have to be an intentional refusal; “refusal” may be conditional response such as
driver's request to speak to attorney, silence when requested to submit to chemical test for blood
alcohol content, inability to produce adequate sample not due to medical condition, or inability to meet
preparatory steps required for test.
The appellate court noted there is an exception if "the person shows the failure was due to
physical inability caused by a medical condition unrelated to any ingested alcohol or drugs"
The burden is on the driver to show his refusal was based on a medical problem. Nava v.
KDOR unpublished, 2012 WL 3135902 (07/27/12)
Refusal Law
8-1025. Refusing to submit to a test to determine the presence of alcohol or drugs; penalties
(a) Refusing to submit to a test to determine the presence of alcohol or drugs is refusing to submit to
or complete a test or tests deemed consented to under subsection (a) of K.S.A. 8-1001, and
amendments thereto, if such person has:
(1) Any prior test refusal as defined in K.S.A. 8-1013, and amendments thereto, which occurred:
(A) On or after July 1, 2001; and (B) when such person was 18 years of age or older; or
(2) any prior conviction for a violation of K.S.A. 8-1567 or 8-2,144, and amendments thereto, or a
violation of an ordinance of any city or resolution of any county which prohibits the acts that such
section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a
complaint alleging any such violations, which occurred:
(A) On or after July 1, 2001; and
(B) when such person was 18 years of age or older
CriminalRefusalandOtherFunStuff‐AprogramoftheDepartmentofTransportation.
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What is a Prior Conviction?
Prior Conviction for the charge of DUI-refusal include:
On or after July 1, 2001
1) Prior conviction/diversion
2) You may count ONE prior administrative refusal w/o conviction
OR IN PERSON'S LIFETIME:
1) DUI-refusal
2) Commercial DUI
3) Boating DUI
4)DUI-Manslaughter
5)Agg vehicular Homicide
6) Vehicular Battery-DUI
7) Code of Military Justice-DUI
On prior cannot be used to determine severity: (6) the prior conviction that is an element of the
crime of refusing to submit to a test to determine the presence of alcohol or drugs shall not be used
for the purpose of determining whether a conviction is a first, second, third or subsequent conviction
in sentencing under this section and shall not be considered in determining the sentence to be
imposed within the limits provided for a first, second, third or subsequent offense
Diversion: K.S.A. 8-1025(h)(7)
No Plea bargaining: K.S.A. 8-1025(l)
Suspension of license upon conviction: K.S.A. 8-1025(i)
Punishment: 2nds can be misdemeanor or Felony (10 year look back) See K.S.A. 8-1025(b)(1)(B)
& (C)
IMPLIED CONSENT
K.S.A. 8-1001 (k) Before a test or tests are administered under this section, the person shall be
given oral and written notice ......
The duty of the officer is to read the implied consent notices that apply and if the officer decides to
provide other information he must provide correct statements of law. Cuthbertson v. KDOR 42
Kan.App.2d 1049, 220 P.3d 379 (12/04/09)
UNDER 21
K.S.A. 8-1567a (b) Whenever a law enforcement officer determines that a breath or blood alcohol
test is to be required of a person less than 21 years of age pursuant to K.S.A. 8-1001 or K.S.A.. 82,142 and amendments thereto, in addition to any other notices required by law, the law enforcement
officer shall provide written and oral notice.....
INITIALS
The officer testified he usually initials all pertinent portions of the implied consent. He had initialed
the front of the form but did not initial the back of the form which contained the underage provisions.
There is no legal requirement that an officer initial each paragraph of the implied consent
advisory as he or she reads it to a driver, in light of the officer's testimony that it was his
custom to do so, the court could certainly consider his failure to initial certain paragraphs in
this case as evidence that he did not read them to William. William v. KDOR unpublished,
2012 WL 1352874 (04/12/12)
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DC-27
The date is not a fact that may be contested in an administrative hearing or upon judicial review. The
review was based on K.S.A. 8-1020 that sets forth in detail the issues a licensee may challenge after
failing or refusing a test. Felgate v. KDOR unpublished, 2011 WL 6309788 (12/02/11) In Schmidt:
The court looked to K.S.A. 8-1002(a) and subsection (d) and determined the incident date is NOT
information required by the statute therefore this cannot be a fatal error. No one was mislead by the
error in the incident date. Schmidt v. KDOR unpublished, 2010 WL 4157022 (10/08/10)
RECIND A REFUSAL
To be effective, the subsequent consent must be made:
(1) within a very short and reasonable time after the prior first refusal;
(2) when a test administered upon the subsequent consent would still be accurate;
(3) when testing equipment is still readily available;
(4) when honoring the request will result in no substantial inconvenience or expense to the police; and
(5) when the individual requesting the test has been in the custody of the arresting officer and under
observation for the whole time since arrest.
Standish v. KDOR 235 Kan. 900, 902-03, 683 P.2d 1276, 1280 (1984)
If we are going to encourage a person to change his or her mind about whether to blow into the
Intoxilyzer, we should likewise encourage a person to change his or her mind about whether to
properly blow into the Intoxilyzer. State v. May 293 Kan. 858, 269 P.3d 1260 (2012)
No duty to suggest a “retake” or a rescission. Ramirez v. KDOR 13 Kan.App.2d 332 (1989)
CONSTRUCTIVE REFUSAL
See Brummet and McRoberts --listed under refusal.
PROTOCOL
An officer does not have to ask a driver to remove his dentures to comply with the testing protocol.
Bolton v. KDOR 47 Kan.App.2d 204, 274 P.3d 655 (03/23/12)
VEHICLE - K.S.A. 8-1485
"Vehicle" means every device in, upon or by which any person or property is or may be transported or
drawn upon a highway, except electric personal assistive mobility devices or devices moved by human
power or used exclusively upon stationary rails or tracks.
Drunk driving in virtually ANY vehicle, except electrical personal assistive mobility devices or devices
moved by human power or used exclusively upon stationary rails or tracks, will allow the state to
prosecute for DUI and suspend your driver’s license under the implied consent law. Shirley v. KDOR
45 Kan. App. 2d 44, 243 P.3d 708 (2010)
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"IN THE STATE" K.S.A. 8-1501
K.S.A. 8-1567 (DUI),
Shall apply upon highways and elsewhere throughout the state.
“Elsewhere throughout the state” applies to operation of motor vehicles upon private as well
as public property. State v. Budden 226 Kan. 150 (1979)
Officers called to a domestic disturbance. Defendant put his car in gear and began backing his vehicle
out of his garage. The officer was pulling into the driveway and therefore the defendant never got out
of his garage. Defendant claimed he could not be DUI in garage/his house. DUI offenses can be
committed on private property. Court cited to Budden. State v. Rivera unpublished, 2010 WL
445689 (01/29/10)
ENTERING THE HOUSE TO CATCH THE DRIVER
Vehicle was involved in a property damage hit and run. Officer received information of the driver's
address and went close to that location. Officer observed an SUV matching description however could
not confirm license tag. Officer followed vehicle observing no traffic infractions nor did not observe
any damage to the vehicle. Officer did not activate emergency equipment. Vehicle pulled into garage
and door began to shut. Officer pulled in behind it and was able to confirm tag. Officer stuck her foot
under garage door to stop its closing and confronted driver in garage. Absent exigent
circumstances a warrantless entry into a home is unconstitutional. Court looked to facts to
get exigent circumstances such as preventing harm to LEO's or others, securing evidence to
prevent imminent loss, hot pursuit, or thwarting escape and found none in this case. Totality of
the Circumstances required suppression of the evidence. There was no exigent circumstance would
have allowed for entry into a house without a warrant. State v. Dugan unpublished, 2012 WL
1564006 (05/4/12)
See State v. Pratt unpublished, 2006 WL 1460594 (2006):
“Being able to outrun the cops may be an effective strategy in a ‘Dukes of Hazzard’ episode,
but not in Kansas.”
ESTIMATION OF SPEED
The court determined a law enforcement officer's observations of a moving vehicle which
results in the officer's estimation the vehicle is moving in excess of the posted speed limit
may constitute, under the totality of the circumstance, reasonable suspicion the driver is
speeding. Cited were: Hampton v. State Highway Commission 209 Kan. 565(1972), State v.
Guy 242 Kan. 840(1998) and State v. Whitehurst 13 Kan.App.2d 411(1988). See State v. Butts
46 Kan.App.2d 1074, 269 P.3d 862 (01/20/12) State v. Steele unpublished, 2009 WL 3428624
(10/23/09) City of Prairie Village v. Starkweather unpublished, 2010 WL 3853186 (9/24/10)
State v. Sanborn unpublished, 2011 WL 3658362 (8/19/11)
DIM LIGHTS- K.S.A. 8-1725(a)
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. State v. Peach unpublished, 2011 WL 4440184 (09/23/11)
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TAG NOT ASSIGNED- K.S.A. 8-142
The officer ran the tag and it came back “tag not on file”. The reason for the stop was the license
tag was not on file. The officer testified there are a number of things which this could
mean: tag doesn’t belong to the vehicle, tag was issued to another vehicle since then, or
the registration has been cancelled. Turns out the tag was valid. The court found this
explanation vague and suppressed the evidence. The appellate court reviewed K.S.A. 8-142 and
found “tag not on file” would provide an officer with a reasonable and articulable basis for
believing a violation had occurred. State v. Kramer unpublished, 2011 WL 768034 (02/25/11)
LEFT OF CENTER-K.S.A. 8-1514
K.S.A. 8-1514 on its face does not make any restriction for unmarked roads.
K.S.A. 8-1514 indicates a vehicle shall be driven upon the right half of the roadway but does list 4
exceptions:
(1)
(2)
(3)
(4)
when overtaking and passing another vehicle proceeding in the same direction;
when an obstruction exists making it necessary to drive left of center on the highway;
upon a roadway divided into three marked traffic lanes; and
upon a roadway restricted to one-way traffic.
See State v. Chavez-Zbarra 42 Kan.App.2d 1074 (12/11/09); State v. Garza No. 102,953
(08/31/12); State v. Hopper 260 Kan. 66 (1996)
REASONABLE GROUNDS TO BELIEVE
K.S.A. 8-1001(b)(1): A law enforcement officer shall request a person to submit to a test or tests
deemed consented to under subsection (a): If the officer has reasonable grounds to believe the
person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs,
or both....
Accordingly, a law enforcement officer has “reasonable grounds to believe” that a person is operating
or attempting to operate a vehicle while under the influence of alcohol or drugs if, under the totality
of the circumstances, a reasonably prudent police officer would believe that the person's guilt is
more than a mere possibility. Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775–76, 148 P.3d
538 (2006); Poteet v. Kansas Dept. of Revenue, 43 Kan.App.2d 412, 416, 233 P.3d 286 (2010).
In Campbell v. KDOR, 25 Kan.App.2d 430(1998) the trial court relied on several factors in
determining the arresting officer had reasonable grounds to believe Campbell was DUI. The
Campbell factors included:
1.
2.
3.
4.
5.
That Campbell was driving 72 mph in a 55-mph zone
It was 1:10am
Officer could smell alcohol on Campbell’s breath
Campbell admitted to consumption of alcohol
Campbell’s appeared bloodshot and glazed
These facts were determined to have Probable Cause to arrest Campbell even before the
administration of the field sobriety tests.
In Slack v. KDOR, Unpublished, 2011 WL 1004602 (2011) the facts were found as follows:
1.
2.
3.
Slack was travelling 84 mph in a 70 mph zone.
The stop occurred between 12:57 pm and 1:09am
Officer could smell the odor of alcohol
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4. Slack admitted to consuming two beers
5. Slack’s eyes were bloodshot
In Sjoberg v. KDOR unpublished, 2012 WL 3966511 (09/07/12)
1.
2.
3.
4.
Stopped at 1 a.m. for headlight out
Had bloodshot eyes
Admitted to drinking right before he was pulled over
Had some difficulty in field-sobriety tests;
In Duhr v. KDOR unpublished, 2011 WL 4444481 (09/23/11)
1.
2.
3.
4.
5.
6.
strong odor of alcohol
bloodshot and watery eyes
Speech was slightly slurred
failed the walk-and-turn test
Put his foot down on the one-leg stand test
Refused the PBT
The officer had sufficient facts with which to extend the traffic stop to conduct a DUI investigation. In
fact, having confronted a motorist around midnight who smelled of alcohol, had watery and bloodshot
eyes, and whose speech was slurred, one would expect the officer to investigate further rather
than send the motorist on his merry way, thereby placing at considerable risk the motorist and
members of the public he might encounter.
In Allen v. KDOR 292 Kan. 653, 256 P.3d 845 (08/5/11)
1. odor of alcohol
2. bloodshot eyes
3. admission of drinking
4. 3 clues on walk-and-turn test
5. 1 clue on one-leg-stand test
6. brief driving irregularities
7. status of driver as a minor
SFSTs
SFSTs are to be considered along with all the other evidence available. The fact the driver passes one
or more SFST does not dispel reasonable suspicion if other evidence justifies the officers request for
the PBT. State v. Bojorquez unpublished, 2011 WL 4357848 (09/16/11)
See also State v. Edgar 45 Kan.App.2d 340 rev. granted (05/31/11)
State v. Shadden 290 Kan. 803, 235 P.3d 436 (07/09/10)
Can Testify:
1. What the clues are
2. What you observed
3. Can call them tests
4. Can say they failed them
NO 68% or BAC EQUIVALENT
Although horizontal gaze nystagmus (HGN) test results are not admissible at trial without meeting the
foundation requirements for scientific evidence set forth in Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923),
testimony from a law enforcement officer trained in administering HGN tests may properly be
considered at a pretrial hearing to assist the court in determining from the totality of circumstances
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whether a law enforcement officer had reasonable suspicion to request a preliminary breath test. City
of Wichita v. Molitor 2012 WL 112230 (01/13/12)
POST DRIVING CONSUMPTION OF ALCOHOL
If the situation is such that a reasonable law enforcement officer would investigate, it behooves an
actual officer to do so. This is particularly true when an officer's personal observations of the scene or
the suspect suggest the possibility of post-driving alcohol consumption. such consumption is a factor
to be considered and evaluated, not ignored. Officer's apparent failure to investigate post-driving
alcohol consumption by Swank could have undercut the reasonableness of the officer's reasonable
grounds.!!!!! Swank v. KDOR 281 P.3d 135, 2012 WL 3056029 (07/27/12)
OPEN CONTAINERS
Officers observed an open Bud Light box containing unopened cans of beer sitting on the passengerside floorboard. Upon further inspection 4 out of the 12 cans were missing the remaining 8 were NOT
opened. Prosecutor charged K.S.A. 8-1599, transporting open container. The court stated "so long
as the beer is unopened or in a place in the vehicle which is inaccessible to the driver, it
may be transported." The intent of the statute was to prevent a driver from having direct
access to an open alcoholic beverage. Package was defined in the statute as something
that actually contains alcohol/CMB. There was no violation of the statute. State v. Driskell
unpublished, 276 P.3d 838, 2012 WL 1919906 (2012)
PRIOR FOR DUI
On or after July 1, 2001
1) Prior conviction/diversion
OR IN PERSON'S LIFETIME:
1)
2)
3)
4)
5)
6)
7)
Criminal Refusal (new crime)
Commercial DUI
Boating DUI
DUI-Manslaughter
Agg vehicular Homicide
Vehicular Battery-DUI
Code of Military Justice-DUI
DUI-DRUG
KBI: Increase in prescription drug use
-Oxycodone (OXYCONTIN)
-Alprazolam (XANAX)
-Carisoprodol (SOMA)
-Zolpidem (AMBIEN)
Rx drug abuse accounts for almost 30% of the overall drug problem in the U.S.
Rx drugs kill 4 times more Americans than illegal drugs.
Overall 100,000 Americans die every year from adverse reactions to Rx drugs.
Source: Health – Accidental Death From Prescription Drugs, Issue 25, 2010
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ROADSIDE DRUG TESTING
K.S.A. 75-712h
The director of the Kansas bureau of investigation is authorized to adopt rules and regulations
establishing: (a) Criteria for preliminary screening devices for testing of saliva for law enforcement
purposes, based on health and performance considerations; and (b) a list of preliminary screening
devices which are approved for testing of saliva for law enforcement purposes and which law
enforcement agencies may purchase and train officers to use as aids in determining probable cause to
arrest and grounds for requiring testing pursuant to K.S.A. 8-1001, and amendments thereto.
MARIJUANA
Drug use among those aged 12 and older:
– 8 percent in 2008
– 8.7 percent in 2009
– Highest usage in nearly a decade
– "The results of the survey, to say the least, are very troubling.” Gil Kerlikowske,
director of the White House Office of National Drug Control Policy.
SPICE
K.S.A. 65-4105(h) Any of the following cannabinoids, their salts, isomers and salts of isomers, unless
specifically excepted, whenever the existence of these salts, isomers and salts of isomers is possible
within the specific chemical designation:
(1)
Tetrahydrocannabinols
Meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis
(cannabis plant), as well as synthetic equivalents of the substances contained in the plant,
or in the resinous extractives of Cannabis, sp. and/or synthetic substances, derivatives, and
their isomers with similar chemical structure and pharmacological activity
JWH-073 and JWH-200
JWH stands for: John W. Huffman one of the inventors of the compound
BATH SALTS-Schedule 1
See K.S.A. 65-4105 (f)(5) and (6)
Cathinone and Substituted Cathinones
Active ingredients like methylenedioxypyrovalerone (MPDV), mephedrone and pyrovalerone.
TOXIC VAPORS--HUFFING: K.S.A. 21-5712
(a) Unlawful abuse of toxic vapors is possessing, buying, using, smelling or inhaling toxic vapors with
the intent of causing a condition of euphoria, excitement, exhilaration, stupefaction or dulled senses of
the nervous system. (b) Unlawful abuse of toxic vapors is a class B nonperson misdemeanor. (c) In
addition to any sentence or fine imposed, the court shall enter an order which requires that the person
enroll in and successfully complete an alcohol and drug safety action education program, treatment
program or both such programs as provided in K.S.A. 8-1008, and amendments thereto. (d) This
section shall not apply to the inhalation of anesthesia or other substances for medical or dental
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purposes. (e) For the purposes of this section, the term ‘‘toxic vapors’’ means vapors from the
following substances or products containing such substances:
(1) Alcohols, including methyl, isopropyl, propyl or butyl;
(2) aliphatic acetates, including ethyl, methyl, propyl or methyl cellosolve acetate;
(3) acetone;
(4) benzene;
(5) carbon tetrachloride;
(6) cyclohexane;
(7) freons, including freon 11 and freon 12;
(8) hexane;
(9) methyl ethyl ketone;
(10) methyl isobutyl ketone;
(11) naptha;
(12) perchlorethylene;
(13) toluene;
(14) trichloroethane; or
(15) xylene.
(f) In a prosecution for a violation of this section, evidence that a container lists one or more of the
substances described in subsection (e) as one of its ingredients shall be prima facie evidence that the
substance in such container contains toxic vapors.
IGNITION INTERLOCK-I²
SETPOINT
The “alcohol setpoint” is the predetermined amount of alcohol, when registered by the device, that will
lock the ignition and not allow the vehicle to start. (K.A.R. 92-56-1(b)) Although the regulations
allow for a 0.06 alcohol setpoint the actual device is required not to start if a breath concentration of
0.04 is registered. (K.A.R. 92-56-1(b) and K.A.R. 92-56-2(a)(3)(E))
For Smart Start devices, if alcohol is detected there is a 15 to 20 minute reset before another breath
sample can be introduced into the instrument.
CIRCUMVENTION
Circumvention means an overt, conscious attempt to bypass the ignition interlock device by providing
samples other than the natural, unfiltered breath of the driver, starting the vehicle without using the
ignition switch or performing any other act intended to start the vehicle without first taking and
passing a breath test. Circumvention allows a driver who has an alcohol concentration in excess of
the alcohol setpoint to start the vehicle. (K.A.R. 92-56-1(f)(1-3))
HOW TO GET IT STARTED
The Smart Start device requires two different ways to get breath into the instrument. One is a hum.
This requires the user to blow then hum then blow again. The other is a suck method. The user is
required to blow then suck air in then blow again. Both methods require a set time to perform this
function. Either method is an attempt to limit the ability of the user to circumvent the device. At the
time of installation, in some instances users take up to 20-30 minutes to learn how to blow into the
device correctly to insure they are able to get their vehicle started.
ROLLING RETESTS
Every device in Kansas must allow for a “rolling retest”. This is a subsequent breath test that must be
conducted according to the preset conditions of the ignition interlock device for a fixed time period and
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must be completed while the motor vehicle is in operation. Failure to execute a valid retest will cause
the vehicle ignition to enter a lockout condition. (K.A.R. 92-56-2(a)(3)(D) and K.A.R. 92-56-1(j))
The device is required to alert the driver with a three-minute warning light that a rolling retest is
required. Once the alert is sounded the driver shall have five minutes to complete the retest. The
device is to be set up to require a rolling retest after the vehicle has been in operation for at least 10
minutes and retest shall occur at 30 minute intervals. (K.A.R. 92-56-2(a)(3)(I) and K.A.R. 92-564(b)(4))
The retests are very random. There is no way in knowing when the testing will occur until the warning
light comes on or how many times the testing will be requested on any given trip. For example, a 30
minute drive may require testing 1-5 times at random intervals.
As a safety feature, the ignition interlock won’t turn the motor off, even if the device measures alcohol
above the set limit. Since steering shuts down when the engine is turned off, the devices will not shut
the engine down. Considering that would be extremely dangerous this is a good thing. Instead, the
ignition interlock records a violation on a data log. In fact, it logs everything that happens with the
car. It tracks all attempts to start the vehicle and the breath test results, whether the car starts or
not. It records the results of all rolling retests and flags any attempt to tamper with the device.
(K.S.A. 8-1016(a)(3))
EMERGENCY BYPASS
The manufacturer is also to provide an “emergency bypass switch”. This switch allows for the driver
to bypass the ignition interlock device in case of an emergency or failure of the device and that places
the ignition interlock device in a run state mode so that no test is required when the ignition switch is
turned on.
The bypass switch can be used once. If used, the event shall be recorded in the event log and the
device shall be put into early service status. (92-56-1(g)) In the Smart Start device to “activate” this
emergency bypass the user must call Smart Start to receive a special access code to enter into the
device to activate this feature. Smart Start still requires the user to blow into the device to insure the
person is not intoxicated. If the Smart Start bypass is used the user has 48 hours to get the device to
a service provider so they can download data and recertify the device. If the user fails to get to the
service provider in 48 hours the car will NOT start under any circumstances. This will require the
service provider to go to where the vehicle is locate to get the device up and running and clearly cost
the user extra fees.
CALIBRATION
At the owner’s expense each device is to be calibrated by the service provider installing the equipment
at least every 60 (sixty) days. (K.A.R. 92-56-4(b)(5) and K.S.A. 8-1016(a)(3)) There are additional
installation and removal fees however. A Smart Start device alerts the user to when the service
provider must calibrate the device ie. when their next appointment is.
A lockout shall occur within 7 (seven) days of any of the following events (K.A.R. 92-56-4(b)(6)):
1.
2.
3.
4.
5.
The 60-day calibration and service requirement has been reached.
Five or more violations have been recorded.
The emergency bypass switch has been used.
A hardware failure or evidence of tampering is recorded.
The events log has exceeded 90 percent capacity.
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VIOLATIONS DEALING WITH I²
K.S.A. 8-1017:
1.
2.
3.
4.
Tamper with the device for the purpose of circumventing it or rendering it inaccurate or
inoperative
Requesting or soliciting another to blow into the device or start a motor vehicle equipped
with a device for the purpose of providing an operable motor vehicle to a person whose
driving privileges have been restricted to driving a car with such device
Blow into or start a motor vehicle equipped with the device for the purpose of providing an
operable motor vehicle to a person whose driving privileges have been restricted to driving
a car with such a device
Operate a vehicle not equipped with an ignition interlock device during the restricted
period.
PUNISHMENT
(b) Violation of this section is a class A, nonperson misdemeanor.
(c) In addition to any other penalties provided by law:
(1)(A) On a first conviction of a violation of subsection (a)(1) or (a)(2), the division shall
extend the ignition interlock restriction period on the person's driving privileges for an
additional 90 days; and
(B) on a second or subsequent conviction of a violation of subsection (a)(1) or (a)(2), the
division shall restart the original ignition interlock restriction period on the person's driving
privileges; and
(2) on a conviction of a violation of subsection (a)(4), the division shall restart the original
ignition interlock restriction period on the person's driving privileges.
KBI LABORATORY-TOXICOLOGY
EXPIRED TUBES
The date of expiration on a blood tube relates only to its ability to draw blood into itself from the vein.
The chemicals in the tube DO NOT EXPIRE!
INVERSION/CHEMICALS IN THE TUBE
The KBI provides a blood kit for the officers to use. In the kit the KBI has instructions which indicate:
Immediately after blood collection, assure proper mixing of anticoagulant powder by
slowly and completely inverting the blood tube at least five times.
As noted the reason for this is anticoagulant powder in the tube. Actually what is in the tube is
anticoagulant powder and a preservative (sodium fluoride and potassium oxalate). Defense attorneys
wish to indicate the state cannot prove this “step” was done. The person drawing the blood and
sometimes the officer cannot remember if they “inverted at least 5 times or not”
State v. Eberhardt unpublished, 206 P.3d 72, 2009 WL 1140266 (2009) states:
[T]he technician who performed the toxicology analysis testified the vial only needs to be
inverted to mix the blood with an anticoagulant and preservative. The lack of clotting in the sample
indicated the vial had been properly mixed.
Page11
SEARCH WARRANTS
1. I have a checkbox search warrant for you to use-takes about 15 minutes to fill out.
2. I have a memorandum of law explaining --it is legal to do.
3. There should be a policy in place for how to obtain and execute a search warrant.
MANDATORY JAIL HOLDS
Rickerson was arrested for DUI. Per the policy of the jail, Rickerson was held under a policy
promulgated by the district court requiring a mandatory 6-hour hold before a DUI arrestee was
allowed to post bond. Rickerson's wife and son, both over 18 years of age, came to the jail to bond
him out but were told he could not be released until the mandatory time elapsed. A motion to
dismissed was filed based on State v. Cuchy 270 Kan. 763(2001) which noted a mandatory
detention, without a finding of being a danger to themselves or others, is unconstitutional.
No determination was made Rickerson was a danger to himself or others. Rickerson also indicated
another Judge in that jurisdiction had dismissed a case in 2002 based on the Cuchy decision.
Therefore the court indicated since the mandatory-detention policy was the result of
institutional noncompliance with and systematic disregard for the law-- dismissal was
appropriate remedy of the matter. State v. Rickerson 47 Kan.App.2d 648, 276 P.3d 240
(05/18/12)
IMPOUNDMENT
2012 Kansas Legislature- House substitute for SB 60 -removed all sections dealing with impoundment
of a vehicle for DUI.
K.S.A. 8-1567(g)(1-5)-removed. This went into effect July 1, 2012.
KCJIS-Kansas Criminal Justice Information System
RAPID-Record and Police Impaired Drivers
Page12

CRIMINAL REFUSAL AND OTHER FUN STUFF By Karen C. Wittman, Assistant Attorney General Kansas Traffic Safety Resource Prosecutor A Program of the Kansas Department of Transportation

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