Questions are being raised about the handling of a drunken-driving charge filed against a state senator.
Under state law, most people convicted of the charge lodged against Sen. Ed Pugh would have their driver's licenses suspended for 30 days and restricted an additional 330 days.
But the license of the Wamego Republican, who was ticketed for drunken driving shortly after 11 p.m. Jan. 3 in downtown Topeka, was neither suspended nor restricted.
"The senator got away with something a regular citizen can't get away with," said Les Hulnick, a Wichita attorney whose law firm specializes in DUI cases.
Rick Frydman, a Lawrence defense attorney, put it this way: "It appears there might be a two-tiered standard at play here -- one for regular Joe and Jane Schmoe, and one for state legislators."
Contacted Tuesday, Pugh, a lawyer and rancher, denied receiving special treatment in the case, which was his first drunken-driving offense.
"There's absolutely nothing untoward in the actions that occurred in my case," he said.
Asked several times to explain the Division of Motor Vehicle's decision not to suspend or restrict his driver's license, Pugh declined comment.
With a restricted license, a driver is allowed to drive only during medical emergencies and to and from work, school, and alcohol counseling sessions.
Pugh, 53, entered a diversion agreement last month with the Topeka city attorney's office, agreeing to pay $819 in fines and fees and write letters of apology to two police officers involved in his arrest.
Diversion agreements typically are offered to first-time offenders who admit to the crime and agree to conditions such as receiving counseling or substance abuse treatment. If the diversion is successfully completed, the case will be dismissed and the charge will not appear on the offender's record. However, if the diversion is not successfully completed, the prosecutor can use the admission to win a guilty verdict.
In Pugh's case, officers had been called to the scene at 11 p.m. after Pugh, who had stopped at a stop sign, backed his 1989 Ford Bronco into a car driven by a 17-year-old Topeka girl. Neither driver was hurt. Damages were considered minor.
Pugh's blood-alcohol content tested at 0.241 percent, three times the state's legal limit of 0.08 percent.
Under Kansas law, diversion agreements for drunken drivers do not involve suspending or restricting driver's licenses. Instead, that's handled by the DMV.
The law stipulates that someone arrested on suspicion of drunken driving must surrender his or her driver's license, and receive a 30-day temporary license. The driver then has 10 days to exercise the option of requesting an administrative hearing before the Division of Motor Vehicles.
By requesting a hearing, a driver has a chance of holding on to his or her driving privileges.
"I always tell my clients to request an administrative hearing because there's everything to gain and nothing to lose," said Frydman, who often defends people in drunken-driving cases. He noted that first-time offenders who don't request a hearing automatically have their license suspended for 30 days and restricted for an additional 330 days.
But if the arresting officer is unable to attend the hearing or if there's reason to believe the officer bungled the blood-alcohol test, Frydman said, there's a good chance the driver won't lose his or her license.
"It's been my experience that this happens in only about 5 percent of the requested hearings," Frydman said. "And out of this 5 percent the vast majority -- I'm guessing 95 percent of the 5 percent -- are because the officer for whatever reason doesn't show."
Pugh, who's vice chairman of the Senate Judiciary Committee, requested and won an administrative hearing. He declined to say whether he won because the police officers didn't show up or because the test had been mishandled.
At the Topeka Police Department, Lt. John Sidwell said officers who fail to show up for hearings are subject to "disciplinary writeups" that become part of their personnel file.
"I really can't say whether they showed or not," he said. "But I can tell it's something we're pretty serious about."
Donita Thomas, who oversees record keeping at the DMV, declined to explain the ruling, noting she wasn't sure if it was subject to the state's open-records laws.
"Your request is being reviewed," she told the Journal-World early Tuesday afternoon. "We might have something tomorrow, possibly, or the next day."
'Mr. Pugh won the lottery'
Frydman said he was suspicious.
"These hearings are civil proceedings, they're not criminal proceedings," he said. "So the cards are stacked against you going in -- you're presumed guilty until proven innocent.
"If you run this by any attorney who handles DUI cases, they'll tell you Mr. Pugh won the lottery," he said. "And that's fine -- I wish the man no harm, but I think the public deserves to know how he did it because there are lots and lots of people who have not fared as well."
Pugh said he's paid for his mistake.
"How many more articles are you guys going to do on this?" he asked Tuesday. "I've gone seven or eight or 10 rounds over this -- isn't there a point where this stops?"
DMV records show Pugh's driver's license was restricted from July 19 to August 18 last year after he received four speeding tickets in less than a year.
Sen. Lana Oleen, R-Manhattan, was ticketed Feb. 25 for drunken driving in Topeka. In an interview last week with the Manhattan Mercury, Oleen indicated she, too, planned to enter into a diversion agreement.