The Johnson County YLS Presents:DUI's In ... - cdn.ymaws.com

The Johnson County YLS Presents:DUI's In ... - cdn.ymaws.com

The Johnson County YLS Presents: DUIs In JoCo: A Primer PRESENTED BY PETER SIMONSEN, CITY OF LENEXA, LAUREL KUPKA, PAYNE & JONES, CHARTERED, AND THE HONORABLE KATIE MCELHINNEY, CITY OF LENEXA Objectives: Provide basic overview of DUI stop. Explain misdemeanor DUI case process in municipal court. Discuss common evidentiary and procedural issues.

Provide update on any recent case law. Discuss ethical issues in DUI representation. The Johnson County Bar Associations 2016 Herbet W. Walton Bench Bar Conference Wednesday, March 2, 2016 Breakout Session 1

8:30 AM 9:20 AM The Basic Phases of a DUI Phase Description Standard The Stop Usually a traffic stop Reasonable Suspicion DUI Investigation Field Sobriety Tests Probable Cause Arrest and Breath Test

Evidentiary Breath Test Prima Facia case The Stop The Stop is the event giving rise to initial contact between the defendant and law enforcement. Most commonly a traffic stop, but could also be a DUI check lane, responding to the scene of an accident, or any other lawful reason for law enforcement to have contact with the defendant. The stop of a vehicle being driven upon the streets always constitutes a seizure. State v. McKeown, 249 Kan. 506, 510 (1991). To stop a moving vehicle an officer must have articulable facts sufficient

to constitute reasonable suspicion under K.S.A. 222402 and Terry v. Ohio, 392 U.S. 1 (1968). State v. McKeown, 249 Kan. 506, 510 (1991). To stop a vehicle to investigate circumstances which provoke suspicion, an officer must be aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle contains individuals involved in criminal activity. United States v. BrignoniPonce, 422 U.S. 873, 884 (1975). The Stop Cont. Traffic infraction is most common event leading to stop. A traffic violation provides an objectively valid reason to effectuate a traffic stop, even if the stop is pretextual. See Whren v. United States, 517 U.S. 806, 813 (1996); State v. DeMarco, 263 Kan. 727, 733 (1998); State v. Anderson, 281 Kan. 896, 901 (2006).

The officer does not have to observe bad driving to stop a vehicle, although the observance of bad driving could give rise to reasonable suspicion of DUI sufficient to justify a stop. The defendant could ultimately be found not guilty of the traffic infraction, or the officer could decline to cite the defendant for a traffic infraction, but that does not necessarily mean the stop was unlawful. So long as the officer operates in good faith, a reasonable mistake of fact can still provide the reasonable suspicion required to make a traffic stop. State v. Miller, 49 Kan. App. 2d 491, 494-95 (2013) The DUI Investigation Once a vehicle is lawfully stopped, the next phase is the DUI investigation. In a typical traffic stop, a traffic infraction gives rise to the

reasonable suspicion to stop the vehicle, but this does not necessarily give the officer reasonable suspicion to investigate for DUI. The scope of scope of the stop can expand to include DUI if the officer has reasonable suspicion of DUI. Officer can ask if defendant has been drinking or where they have been. An officer's inquiries or actions unrelated to the justification for an initial traffic stop do not convert the stop into an unlawful seizure so long as they do not measurably extend or prolong the stop. State v. Jones, 47 Kan. App. 2d 866, 871-72 (2012) aff'd, 300 Kan. 630 (2014) The DUI Investigation Cont. In the absence of consent, an officer may expand the duration of the detention beyond the initial stop when the responses of the defendant and the circumstances relating to the stop give rise to

suspicions of a crime unrelated to the traffic offense. The officer may then satisfy those suspicions, graduating the police response to the demands of the situation. See State v. Morlock, 289 Kan. 980, 99596 (2009). But an officer may expand the detention beyond the purposes of the initial stop only if there is an objectively reasonable and articulable suspicion that criminal activity was or is taking place. Following a traffic stop, an officer is not required to close his or her eyes to all offenses that are not traffic related. State v. MacDonald, 253 Kan. 320, 324 (1993). The DUI Investigation Cont. Officer is permitted to concurrently investigate the source of the odor of alcohol and other observable indicia of intoxication, so long as he was diligently pursuing the traffic stop investigation. City of Norton v. Stewart, 31 Kan. App. 2d 645, 649 (2003). (At

the time officer obtained reasonable suspicion to commence a DUI investigatory detention, he was diligently pursuing the permissible traffic stop investigation.) The DUI Investigation Cont. Facts that could give rise to reasonable suspicion of DUI (other than bad driving): Odor of alcohol Fumbling license or registration Bloodshot or watery eyes Slurred speech

Admission to drinking Open containers in vehicle Slow response time to activation of emergency lights The DUI Investigation Cont. Once the officer has reasonable suspicion, he can ask defendant to do field sobriety tests (FSTs) Standard FSTs:

HGN Walk and Turn One-legged Stand The DUI Investigation Cont. PBT (Preliminary Breath Test) K.S.A. 8-1012: (a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent to submit to a preliminary screening test of the person's breath or saliva, or both, subject to the provisions set out in subsection (b).

(b) A law enforcement officer may request a person who is operating or attempting to operate a vehicle within this state to submit to a preliminary screening test of the person's breath or saliva, or both, if the officer has reasonable suspicion to believe the person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both alcohol and drugs. (c) At the time the test is requested, the person shall be given oral notice that: (1) There is no right to consult with an attorney regarding whether to submit to testing; (2) refusal to submit to testing is a traffic infraction; and (3) further testing may be required after the preliminary screening test. Failure to provide the notice shall not be an issue or defense in any action. The law enforcement officer then shall request the person to submit to the test. The DUI Investigation Cont. Probable Cause to Arrest.

To be lawful, a warrantless arrest must be supported by probable cause. Sloop v. Kansas Dep't of Revenue, 296 Kan. 13, 20 (2012), K.S.A. 222401(c); State v. Ramirez, 278 Kan. 402, 405 (2004). Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. State v. Abbott, 277 Kan. 161, 164 (2004). Existence of probable cause must be determined by consideration of the information and fair inferences therefrom, known to the officer at the time of the arrest. Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 77576 (2006). Probable cause is determined by evaluating the totality of the circumstances. State v. Hill, 281 Kan. 136, 146 (2006). As in other totality of the circumstances tests, there is no rigid application of factors and courts should not merely count the facts or factors that support one side of the determination or the other. State v. McGinnis, 290 Kan. 547, 55253 (2010) Sloop v. Kansas Dep't of Revenue, 296 Kan. 13, 20 (2012). Guilt more than a mere possibility language disfavored. Id.

The DUI Investigation Cont. Probable Cause to Arrest. To be lawful, a warrantless arrest must be supported by probable cause. Sloop v. Kansas Dep't of Revenue, 296 Kan. 13, 20 (2012), K.S.A. 222401(c); State v. Ramirez, 278 Kan. 402, 405 (2004). Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. State v. Abbott, 277 Kan. 161, 164 (2004). Existence of probable cause must be determined by consideration of the information and fair inferences therefrom, known to the officer at the time of the arrest. Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 77576 (2006). Probable cause is determined by evaluating the totality of the circumstances. State v. Hill, 281 Kan. 136, 146 (2006). As in other totality of the circumstances tests, there is no rigid application of factors and courts should not merely count the facts or factors that support one side of the determination or the other. State v. McGinnis, 290 Kan. 547, 55253 (2010) Sloop v. Kansas Dep't of Revenue, 296 Kan. 13, 20 (2012).

Guilt more than a mere possibility language disfavored. Id. ARREST Evidentiary Breath Test - K.S.A. 8-1001 (a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this article, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs. (b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) If, at the time of the request, 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 . . .and one of the following conditions exists: (A) The person has been arrested or otherwise taken into custody for any violation of any state statute, county resolution or city ordinance. ARREST Cont. K.S.A. 8-1567 (a) Driving under the influence is operating or attempting to operate any vehicle within this state while: (1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;

(2) the alcohol concentration in the person's blood or breath, as measured within three hours of the time of operating or attempting to operate a vehicle, is .08 or more; (3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle; (4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or (5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle. ARREST Cont. To have an admissible breath test:

The officer must be certified by KDHE The machine must be certified by KDHE The testing procedures were followed. K.S.A. 81002; State v. Bishop, 264 Kan. 717, 725 (1998). CHARGES HAVE BEEN FILED Two parts of a DUI: the criminal proceedings (in municipal or district court), and the administrative proceedings.

The criminal proceeding is to determine whether defendant is guilty of DUI. The administrative proceeding is to determine whether or not the defendants drivers license will get suspended. These two proceedings run concurrently and interplay with each other. For example, a DUI convinction could result in a drivers license suspension, even if you beat the administrative action. CHARGES HAVE BEEN FILED Time is of the essence. Cont. 14 days to request administrative hearing. K.S.A. 81020(a).

Defendant will typically have been given a citation (or multiple citations), a notice to appear, DC-27 and DC70 forms for administrative suspension of drivers license. Notice to appear will have Defendants arraignment date. CHARGES HAVE BEEN FILED Municipal Court Procedure Cont. Most jurisdictions allow you to enter your appearance either electronically or over the phone. Case can typically be set to an attorney plea docket, at which time the defense

attorney can discuss the case with the prosecutor. CHARGES HAVE BEEN FILED Municipal Court Procedure Cont. Cont. Many jurisdictions have a DUI diversion program. A Defendant is only entitled to one lifetime diversion for DUI. K.S.A. 8-1567(i)(6). May need to fill out written application, and prosecutor will run the defendants criminal history and determine eligibility. Possible reasons for denying diversion include:

high BAC, involved in accident, and prior criminal history. CHARGES HAVE BEEN FILED Municipal Court Procedure Cont. Cont. Most jurisdictions have a procedure for requesting standard DUI discovery, typically a copy of the police report and the dash-cam video. Additional discovery, like the Intoxilyzer records or booking room video may also be available. Most discovery requests are filed with the Police Department. CHARGES HAVE BEEN FILED Municipal Court Procedure Cont. Cont. Typical

Requirements for diversion: 12 month diversion period, Get alcohol and drug evaluation and follow recommendations, no drugs or alcohol,do not violate the law, do not drive unless validly license to do so. Probation may be similar, except can be up to 24 months. Mandatory 48 hours confinement on first time DUI. Some jurisdictions allow this time to be served by attending a Weekend Intervention program, at which the defendant will be involved in intensive inpatient treatment for 48 hours. On a second time DUI, house arrest may be an option after completing 48 hours. QUESTIONS???

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