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Archive for Sunday, July 29, 2001

Fairness of stricter DUI law disputed

Defense attorneys criticize measure’s severity, retroactivity

July 29, 2001

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— If you've been convicted of a DUI, it might be best to leave those ways behind. Because if you get another DUI no matter how long it's been since the first one you are going to jail.

It's just another wrinkle in new, tougher drunken driving rules that became law July 1.

The new provisions are being criticized by defense attorneys who say the Legislature has gone too far in punishing drinking and driving.

"The only thing they didn't do was make it a capital offense," said Les Hulnick, a Wichita lawyer who defends people against DUI charges.

Under the old law, if you were convicted of driving under the influence of alcohol and then were able to make it five years without another conviction, the previous conviction "decayed," meaning it would not count against any future convictions.

But as of July 1, previous convictions, even if they were more than five years ago, will increase the penalty for the new conviction.

And the law is retroactive, meaning it applies to all previous DUI convictions, even if the convictions were in other states and even if they had previously decayed.

New penalties

According to the new law, a second DUI conviction nets at least two days in jail, three days of work release, a fine between $1,000 and $1,500 and further probation.

The maximum jail time for a second conviction is one year in jail.

In addition, if the conviction is the second one within five years, the driver's license is suspended for one year, and when it is returned the person has to drive for one year with an ignition-lock device that checks whether the driver has been drinking.

"You are going to see a lot of people in their 40s and 50s who become felons," said attorney Patrick Nichols, who lives in Lawrence and practices in Topeka.

But Kevin Graham, an assistant attorney general, defends the retroactive part of the law, saying all other crimes are treated that way.

He said the simple way to avoid a problem is to not drink and drive.

But Nichols and Hulnick said it's not so simple , because DUI laws are different than most other crimes. Most criminal activity is well-defined by the law, but drinking alcohol and then driving is legal.

It is only when a driver's blood-alcohol content reaches .08 percent that it becomes illegal regardless of whether or not the motorist was driving safely, Nichols said.

No surprises

But one of the law's sponsors, Rep. Mike O'Neal, R-Hutchinson, and chairman of the House Judiciary Committee, said he thought the new law would work out fine.

"Time will tell if there are hardships. There is not a lot of sympathy for DUIs under the dome," O'Neal said referring to the Legislature.

Since the law took effect, some with previous DUI convictions who have stopped drinking have complained that their records will be marred for life and will affect their insurance rates and ability to get certain types of driving jobs.

And some also have complained about a provision that suspends the driver's license of underage drinkers for 30 days even if they were not driving when caught drinking.

O'Neal conceded the provisions were tough, but added lawmakers intended to send a strong signal, especially to those under 21 years old, that they didn't want them drinking.

"If they are drinking and in possession one night, they are going to be drinking and driving the next night," he said.

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