Surviving a Kansas State DUI Arrest
By Paul D. Cramm
Kansas Attorney at Law
130 North Cherry, Suite 201 Olathe, KS 66061
1-800-342-5384 or 1-800-Dial-DUI (area 913)
"BUT OFFICER, I’VE ONLY HAD TWO BEERS..."
EVERYTHING YOU HOPED YOU’D NEVER NEED TO KNOW ABOUT KANSAS DUI
Time: Friday, 11:30 a.m.
To: All Clients, Friends and Family
From: Paul D. Cramm
Re: Surviving a Kansas DUI stop
T.G.I.F!! Friday always brings the satisfaction of completing another week at work and the promise of a relaxing weekend, right? For most of us, yes, but for many local law enforcement officers (particularly those who work the midnight traffic shifts), Friday is the beginning of a 48 hour "open season" on drunk drivers. Most patrol officers agree that they make the vast majority of their DUI arrests between 9:00 p.m. and 3:00 a.m. on Friday and Saturday nights. When most folks like you finally have the chance to go out for dinner and a drink without worrying about getting up early for work the next day!
RULES OF THE ROAD
First things first: it is absolutely never a good idea to consume alcohol at a time or under circumstances when you know that you are going to drive. If you are going to drink, that’s fine. Just don’t drive. If you are going to drive, no problem. Just don’t drink. Avoid ever needing the information contained in this report by simply having a designated driver or calling a cab. The complications that a DUI diversion or conviction will have on your life are absolutely nothing compared to the devastation from an auto accident that results in a fatality. Don’t put yourself into a position where that can happen.
THE "TYPICAL" DUI ARREST
You are at your favorite restaurant on a Friday or Saturday night. This particular restaurant is packed and the atmosphere is great. You have a mixed drink at the bar while you wait for a table and you have a glass of wine with dinner. (Wait, didn’t the waiter fill everybody’s glass again between the appetizer and the entrée?)
You have had a great meal and a wonderful time. Now, you’re on your way home and you see the flashing blue and red lights in your rear-view mirror. That sinking feeling begins to set in: "I couldn’t be going that fast? What’s the speed limit here? Do I have a taillight out?"
RULE NUMBER 1: ANY TRAFFIC INFRACTION WILL DO!
That’s right, any traffic infraction, no matter how inconsequential or technical, gives the officer authority to initiate a traffic stop. Something a simple as a burned out tag light will justify the officer’s decision to pull you over. He does not need to suspect you of DUI based on your driving. Sure, many DUI arrests are the result of the officer observing erratic driving, such as swerving or veering all over the road. However, just as many if not more DUI arrests begin as a simple, technical traffic infraction, like a burned out license plate light.
FROM TRAFFIC STOP TO DUI INVESTIGATION
Pursuant to well established U.S. Supreme Court case law, once an officer has made a traffic stop, he may issue either a citation or a warning based on the observed infraction, then he must allow the driver to continue on his way without being subject to further detention or questioning.
That’s the rule, here’s the exception: unless during the course of the traffic stop, the officer has developed ‘probable cause’ of other crime to continue the detention and investigation. That just makes good sense: if the officer looks in the window and sees a person tied up in the back seat with duct tape over her mouth, there is no reason he should be obligated to ignore that fact and let the driver continue with a warning for a burned out license plate bulb!
What does that mean for our driver on the way home from dinner? That means that if the officer is able to observe any indicators that the driver might be under the influence of alcohol, he may continue the traffic stop to "investigate." That includes things as obvious as an open can of beer in the cup holder as well as things as vague as "watery eyes" "slurred speech" and "the odor of consumed alcohol." Anything that the officer can write into his report to suggest that the driver may have had anything to drink before driving will (generally) provide support for the officer’s decision to "continue the detention" to investigate further.
"BUT OFFICER, I’VE ONLY HAD TWO BEERS?!"
Both Kansas and Missouri recognize a driver’s "voluntary admission of prior consumption of alcohol" to be sufficient "probable cause" of DUI to extend any ordinary traffic stop into a full-blown DUI investigation. Be forewarned: "voluntary admission of prior consumption of alcohol" means any amount whatsoever. Defense lawyers often joke that if a priest were to admit during a traffic stop that he just said mass and sipped from the communion chalice, that admission would be sufficient to support the officer’s decision to extend the stop to investigate a DUI!
That’s why traffic officers routinely ask practically anyone they stop after about 9:00 at night if they have had anything to drink. Most people logically think that if they admit to having just one or two drinks, the officer will conclude that there is no way this driver could be drunk from that small amount, and will let them go. Unfortunately, it just doesn’t work that way. As soon as the driver admits to having anything alcoholic to drink at all, the officer essentially has "free reign" to proceed with a DUI investigation.
RULE NUMBER 2: DON’T SAY ANYTHING!!!
If you have had a chance to read my report entitled "Why You Never Waive Your Right to Remain Silent" then you already know the ‘ins’ and ‘outs’ of this rule. Essentially, you are under absolutely no legal obligation whatsoever to assist the officer in his investigation or to make any statement that may be introduced against you in a court of law. Believe me; the prosecutor will clearly attempt to introduce any admission of prior alcohol consumption against you in a DUI trial.
The best answer to any questions the officer asks you about where you have been that evening or how much you had to drink is to ask to speak with your lawyer first. That simple request is deemed to be a "formal" invocation of your constitutional right to counsel and will procedurally "stymie" the officer. Even if the officer doesn’t recognize the legal significance of this request, asking to speak with a lawyer before answering any questions will certainly provide the most "tools" for your lawyer to work with in court.
STANDARDIZED FIELD SOBRIETY TESTS
I’m sure we have all seen the all-too-familiar side show on the shoulder of the road, either in person or on an episode of "COPS." A patrol car is parked behind the unfortunate motorist with its lights flashing as the driver tries to stand on one leg, walk heel to toe in a straight line, and stare at the tip of a pen that the officer waves back and forth like a hypnotist.
Although many of the tests may look random, or even downright silly (especially when attempted by someone who has clearly had too much to drink), there is order amidst the chaos. If the officer has studied his training manual, he is administering "Standardized Field Sobriety Tests" to determine if there is ‘probable cause’ to arrest the driver for DUI. If the driver looks relatively steady and performs the required tests satisfactorily, the officer should let the driver be on his way. If the driver "fails" the tests (according to a scoring system that the officer doesn’t bother to explain to the driver) then the officer is one step closer to establishing ‘probable cause’ to make an arrest for DUI. Sounds pretty simple, right?
Suffice to say the tests are designed for failure. The officer will be all too eager to "fail" the driver for ‘stepping off the line’ or for ‘putting his foot down’ or even ‘raising his arms for balance.’ The problem is that the officer will NOT tell the driver before administering the tests that he will be deducting points for these things. It’s kind of difficult to pass a test with flying colors of you don’t know what counts against you, isn’t it?
As an alternative to the "Standardized Field Sobriety Tests" the officer may simply request that the driver blow into a Portable Breath Test, or PBT. This small, hand held device detects alcohol vapor in the breath and makes an estimate of the concentration of the alcohol it detects. However, the result of the PBT is admissible as a ‘probable cause’ indicator ONLY. In other words, if the driver fails the PBT, the officer can rely on that failure to support his decision to arrest the driver, but the prosecutor cannot introduce the result of the PBT test at court in an attempt to legally prove "intoxication."
THE INTOXILYZER TEST
Once the officer has made the decision to arrest the driver, he will often take the driver to the police station to blow into the "Intoxilyzer" machine. Different jurisdictions use different brand-name machines, but they are all designed to do the same thing: estimate the amount of alcohol in a person’s bloodstream by analyzing the concentration of alcohol vapor in that person’s breath. Without delving into a complex scientific dissertation, the Intoxilyzer (and other similar machines) are supposed to be able to differentiate between a big gust of alcohol coming directly from a person’s mouth and the actual alcohol in the person’s bloodstream that has established a fairly steady concentration in the person’s lungs. That’s why the test at the station is admissible as legal proof of intoxication and the little hand-held portable PBT is not.
TO BLOW OR NOT TO BLOW?!?
I’m sure we all have that friend, acquaintance or co-worker who has said: "If you ever get stopped for DUI, don’t blow and they can’t convict you!" O.K., think about it. Could it possibly be that easy to stump the system?
As a general rule, the Intoxilyzer test result is the strongest evidence in a DUI case. It stands to reason that if the driver does not submit to the Intoxilyzer test, then he has just deprived the prosecutor of a key piece of evidence in the DUI case. I must admit, have had my fair share of good results trying DUI refusal cases.
However, the judge is also allowed to take into consideration many other indicators of intoxication in deciding the case, including: the actual driving task (weaving, failing to signal lane changes, tailgating, failing to stop at stop signs or traffic lights, etc.); performance on the "Standardized Field Sobriety Tests" (swaying, stumbling, lack of coordination); and a person’s general demeanor and appearance (red, bloodshot watery eyes, odor of alcohol, slurred speech, etc.). In other words, just because you don’t blow doesn’t mean you can’t be convicted!
Also, keep in mind that the state agency that issues you driver’s license also has a stake in the outcome of your case with regard to whether or not you loose your driving privileges and for how long. As a general rule, the administrative license suspension for refusal of a breath test is significantly longer than the suspension for failure a breath test.
RULE NUMBER 3: BE POLITE!!!
If you are stopped for DUI, BE POLITE. Try to say as little as possible, knowing that the officer is sniffing the air like a hungry dog to "detect the odor of consumed alcohol" as well as trying to detect you "slurring your speech." As soon as the officer asks where you have been or if you have been drinking, ask to speak with your lawyer!
If you feel pretty stable, it might not be a bad idea to demonstrate your ‘sobriety’ by performing the "Standardized Field Sobriety Tests." Keep in mind that if you choose not to perform these performance tests, the officer may rely in that refusal to support his decision to take you into custody for a breath test. However, you will have deprived the officer of filling his report with observations of swaying, using your arms for balance, stepping off the line, etc. Because refusal or failure of the PBT test is deemed to be ‘probable cause’ to arrest, it might not hurt you to decline that test, although there is usually a monetary fine for doing so.
As for the Intoxilyzer test (the one administered at the police station), it very well may be difficult for the prosecutor to prove the DUI charge without it. Although, keep in mind that the penalty for refusal may be enough worse than the penalty for failure to encourage you to go ahead and submit to that test. It is clearly a "mixed bag" issue that has positive and negative elements attached.
A DUI stop is a no-fun, stressful, embarrassing event that can have very tangible effects on your day to day life thereafter. Some cases are best resolved by trial. Others are best resolved by negotiating with the prosecutor. You may be eligible for Diversion of the offense to avoid the formal prosecution track all together. Whatever you do, do NOT try to "go it alone." Contact a lawyer, get representation, and make the best of what is undeniably a bad situation.
Paul D. CRamm
Paul D. Cramm