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Archive for Sunday, May 4, 2008

Bill approved that would test drivers after accidents

May 4, 2008

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— Dennis and Denise Bixby wiped tears from their eyes Saturday as they sat in the House gallery and watched lawmakers approve a bill that they helped push through the Legislature.

The measure is aimed at increasing testing by law enforcement for drugs and alcohol in drivers involved in serious traffic accidents.

It was prompted by the death of their daughter Amanda Bixby, 19, who was killed on Valentine's Day 2007 in a wreck near Basehor.

The driver who ran into Bixby wasn't tested for drugs, and was later fined and placed on six months probation after pleading no contest to failure to yield at a stop sign.

Dennis and Denise Bixby, of Tonganoxie, think the driver should have been tested for drugs. They have been pushing for more stringent testing requirements since before the legislative session started in January.

The House and Senate on Saturday approved House Bill 2617, putting it on Gov. Kathleen Sebelius' desk for her consideration. The measure increases the authority of law enforcement to order a test for drugs or alcohol in a vehicle accident that results in a death or serious injury.

Dennis Bixby said he was pleased with the final bill.

"This brings out the best in Kansas politics because it didn't matter Republican, Democrat, Independent; they just tried to want to get a bill that would work," Bixby said.

The Bixbys spent many days at the Capitol, testifying for the legislation, talking with lawmakers one-on-one and meeting with various groups.

State Rep. Kenny Wilk, R-Lansing, who helped the Bixbys in their effort, said, "They have been up here countless times."

Bixby said at first he and his wife were working for passage of the bill in memory of their daughter.

But, he added, "As time went on and things changed, we realized that we weren't really doing it for our daughter - our daughter is just fine - we're doing it for the other people in Kansas that are going to be in the same situation that we were, but hopefully they will be able to get the answers."

Comments

logicsound04 5 years, 11 months ago

You're secret is safe with me notajayhawk.

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b3 5 years, 11 months ago

Deadender, before making accusations of slander you might want to take a close look at your own posting history you are apparently a very angry close minded individual. Well, either that or your last batch of pot was no good.

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notajayhawk 5 years, 11 months ago

toe (Anonymous) says: "Could a proctologist do the exams?"Perhaps the proctologists' services could be put to better use - examining the legislators who voted for this monstrosity to see where their heads were at.***logicsound04 (Anonymous) says:"And I'm sorry, but I still don't know how we got from-"he ran a yield sign" to "he must have been on drugs"."Please don't tell anyone we agreed on something. But I too have noticed that everyone, starting with the Bixbys, seems to assume that if the driver had been tested, the result would have been positive. Wouldn't it be a kick in the butt if we did a hair test or something that could reach that far back and it turned out he was stone-straight? Too bad the cops didn't test him way back then. If it had been positive, then the Bixbys might have had a more satisfactory closure, and everyone would be satisfied with existing law. If it had been negative, then this whole misguided idea wouldn't have come about. Either way this bill would never have been foisted on us.

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toe 5 years, 11 months ago

Could a proctologist do the exams?

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logicsound04 5 years, 11 months ago

"If they suspect let them do it and if you havent done anything you have nothing to worry about."--------------------------I agree 100%. The existing laws already allow for this.The Bixby's law makes drug testing mandatory at any injury accident scene. It, in effect, REMOVES the officer's discretion and instead replaces it with a guideline.And I'm sorry, but I still don't know how we got from--"he ran a yield sign" to "he must have been on drugs". This law is not only a violation of everyone's Constitutional rights, but it isn't even directly relevant to the issue at hand.

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Defender 5 years, 11 months ago

"Defender, last time I checked beer wasnt illegal. Once again another ignorant statement by you."It is when you're driving, you ignorant fool. My point was that even if someone has done an illegal drug and would test positive, that does not mean they are still under the influence. This will not stand up in court, so your stupid little law will be going away just as quickly as it came."You should really try thinking before posting adolesent thoughts between puffs on your bong."You should think twice about your statements, b3. Prepared to back up your filthy lie? I have no proiblem getting in touch with my attorney. Would you care to make that accusation in front of a judge when I sue your pants off for slander?

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jafs 5 years, 11 months ago

Bettie,Yes!And thanks for mentioning the recent SCOTUS decision which allows evidence collected from an illegal arrest to be admissable.I can't imagine how the court can find that is not an "unreasonable" search and seizure.It seems to me that something was wrong with this case - either our laws need to be changed to allow the driver to be charged with something more serious than failure to yield, or the officers should have done more on the scene. But this law is over-reaching and unecessary, imho.

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bettie 5 years, 11 months ago

Buggie7:Did you read before you posted? This bill wouldn't allow for drivers to be tested if an officer suspect them - the current law already does that. This bill would mandate it for every driver after every accident. There is no probable cause or even reasonable suspicion requirement, as there is in current law. That's what this whole debate is about.That's why a lot of people, not just "the pot smokers and after work or lunchtime boozers," are upset. We're talking about a search in the absence of suspicion here, so anyone who thinks our constitutional right against unreasonable searches is a good thing should, at the least, be paying attention.

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Buggie7 5 years, 11 months ago

LOL Freash you better tell Daddy to quit driving then.Logic chill out. It says it allows for drivers to be tested. Meaning they will test if there is probably cause. If you are in a accident and you have not been on drugs or drinking then you have nithing to worry about. If they have a reason to suspect then they will test. Wouldnt you want that if a family member, friend, or hell any human was hurt in a accident due to intoxication of some sorts? I would and I would be upset if they didnt do it. If they suspect let them do it and if you havent done anything you have nothing to worry about. I personally would want my name cleared if I was suspected becuase you know that LJW will report that you were "suspected on being intoxicated" This issue isnt a big deal excpet to the pot smokers and after work or lunchtime boozers.

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logicsound04 5 years, 11 months ago

Current law allows for drivers involved in accidents to be tested.This law constitutes a gross violation of unreasonable search and seizure.With all due respect to the Bixby's, I don't appreciate having my rights eroded because of their grief. It makes it a lot harder to be sympathetic of their terrible plight.Shame on the Kansas Legislature to pandering to emotion and grief at the expense of the rest of the citizens of the State of Kansas.

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logrithmic 5 years, 11 months ago

Pro_Counsel wrote:"How much sense does it make, really, to pass a law saying that those who are not observed to be impaired are the ones who need to be tested?"Exactly. Thanks!!!!!

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Pro_Counsel 5 years, 11 months ago

I almost forgot: If there is reliable medical evidence that a certain level of, say, marijuana causes someone to be under the influence, why wasn't that number included in the law, like the legal limit for blood alcohol?

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Pro_Counsel 5 years, 11 months ago

(continued from above)"Like I said, there IS competent medical evidence out there on blood concentrations and the effects of various drugs and I am sure both sides will be represented at trial."I'm not looking to argue with you, but this is what I do for a living. And I have taught this subject to, among others, medical students. One might think that "competent medical evidence" would not include so many instances of statements as "unclear," "much less conclusive," "technology for reliably testing saliva is still unavailable," "no national standards," "limitations" of a study's conclusions, etc., etc., etc. Granted there are some studies underway, particularly with marijuana. But the results to date barely qualify as preliminary, and do not even begin to approach the body of knowledge that we have for alcohol.As to the reasons for the disclaimer attached to drug test results from our laboratory, the lab in question is widely used by the courts, probation and parole, etc. It is not a chain of custody or similar issue, and you're reaching here to try to discredit their expertise or procedures. Immunoassay testing has never been considered that reliable, and before revoking someone's parole or taking away their children, it has always been advised to confirm the results through GC/MS testing. The courts and other members of the criminal justice system (and too much of the medical community) rarely if ever do so, because as a whole they possess very limited understanding of the methodology and its inherent limitations. That is what makes explicit disclaimers such as the ones I mentioned necessary.Even if I granted your point that there is reliable evidence that can be used to determine at what blood level drugs other than alcohol have an effect (and I am by no means doing so), you haven't addressed my other points, most notably that there is no requirement in the bill that those numbers would even be available.This bill does nothing to accomplish its stated purpose of determining if drivers were under the influence of a substance at the time of an accident. By making the testing mandatory, all it does is force drivers who display no outward signs of impairment to submit to testing (those who did display some level of impairment were already subject to testing under existing law). How much sense does it make, really, to pass a law saying that those who are not observed to be impaired are the ones who need to be tested?

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Pro_Counsel 5 years, 11 months ago

Sigmund (Anonymous) says: "I won't deal with all drugs, but for THC I have to rely on the work of others. "The most meaningful recent study measuring driver "culpability" (i.e., who is at fault) in 3,400 crashes over a 10year period indicated that drivers with THC concentrations of less than five ng/mL in their blood have a crash risk no higher than that of drugfree users. The crash risk begins to rise above the risk for sober drivers when a marijuana user's THC concentrations in whole blood reach five to 10 ng/mL."Good article. I hope you noticed that the passage you cited came after this one: "It is unclear what blood level of THC (the main psychoactive ingredient in marijuana) constitutes actual impairment. Most credible scientists working on the issue acknowledge the difficulty of pegging THC impairment to a number (in a way similar to drunk driving laws), and epidemiological evidence on the risk of accidents associated with marijuana is much less conclusive than data regarding alcohol."Also, it doesn't sound like we're talking controlled study here; i.e., they didn't raise the THC level and measure for effect (like almost every radio or TV station in the country has done with alcohol demonstrations), the study is based on correlation. It's entirely possible, is it not, that someone who gets high and drives might be equally unconcerned about other pesky little rules, like speed limits? From your second link "Much of the elevated traffic accident risk found among cannabis users is likely to be more due to the characteristics of those who use cannabis than to the effects of cannabis use." And, unless blood samples were drawn after all accidents, the data set is fatally flawed. (I hope you noted the "Limitations" page from your second link.)Besides which, as I said, we may never even have that information. There is no requirement that the testing be done in such a manner as to give us a serum level of THC, or that GC/MS testing is done. As I mentioned, this would be extremely unlikely, the cost of GC/MS testing after every accident would be prohibitive. (more below)

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bettie 5 years, 11 months ago

Sigmund: "As for railroad accidents, I would bet that far more people are injured or killed annually in automobile accidents Kansas than accidents that involve trains nationwide."That is true, but it seems kind of like comparing apples and oranges. A single car accident would generally involve a few people, maybe more in the instance of a multi-car pile-up. A single trainwreck could injure or kill hundreds of people. In coming down on the side of the special interest in public safety, the court weighed heavily on this factor, emphasizing the deterrent value of letting engineers know that they would be tested immediately after an accident regardless of culpability or suspicion. I don't find the deterrent argument for individual drivers so compelling. As has been discussed at length above, drugs that were taken weeks or months beforehand can show up in a test, and I don't imagine this law will deter many people who smoked pot one week from driving the next. The current law provides sufficient deterrence for driving under the influence. Whether the current law is being used to its potential is a different question. If it is being underenforced, that is, if officers are not testing when they should, there are remedies more appropriate than mandating testing of everyone involved in every accident."Although engineers consent to the testing as a condition of employment, drivers also consent to testing as a condition of using Kansas roads."Again, apples and oranges. Drivers in Kansas consent to testing that can only occur when there is reasonable suspicion that they are under the influence. Engineers consent to random testing as a condition of employment. They know that they can be tested for drugs by their employers at any time, without suspicion, and therefore have no reasonable expectation of privacy in that regard. People who do not choose to enter one of the many fields of employment which require random testing, however, do have a reasonable expectation that their breath, blood, and urine will not be tested at random and without reasonable suspicion.(I've appreciated the good back and forth today - usually I don't get involved in discussions on this board because they're not often worth it.)

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Sigmund 5 years, 11 months ago

Rationalanimal (Anonymous) says: "I'm sorry. This is a terrible law."It also should be noted this "terrible" bill passed the House "Yeas 117 Nays 5" and the Senate "Yeas 40 Nays 0." That would be both Democrats and Republicans, overwhelmingly. http://www.kslegislature.org/legsrv-billtrack/searchBills.do;jsessionid=F5BAB76CAD8C9C3A2DB24F8E17E8FB4F

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Sigmund 5 years, 11 months ago

Rationalanimal (Anonymous) says: "I'm sorry. This is a terrible law."It may be, but the sorrow of the parents can hardly be fairly characterized as "irrational grief."

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Sigmund 5 years, 11 months ago

My favorite "presumptive test" for drugs was suggested during this news segment. It happens about 2:00 into the video.http://www.youtube.com/watch?v=qotIa4ymF80

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Sigmund 5 years, 11 months ago

justfornow (Anonymous) says: "K.U. has a Law degree program that might interest some of you, I heard it's very good"Objection, hearsay that does not fall under the, near as makes no difference, bazillion exceptions to the "Hearsay Rule."

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Rationalanimal 5 years, 11 months ago

I'm sorry. This is a terrible law. Good law is not written by people showing up to the legislature misty eyed with a picture of a loved one and a candle. The Bixby's lost their daughter. People die. That is life. Accidents happen. It is terrible. It touches us all. But that is not a justification for a law that subverts probable cause, the presumption of personal privacy, and places tremendous power in the hands of law enforcement. This law most likely will not even pass constitutional muster. In the broader perspective, this law, and others like it, represent the proliferation of nanny laws to cover every circumstance, and every possible instance of human conduct. Law under our western constitutional governments function to protect fundamental individual liberties from centralized tyranny and other citizens. Law is not meant to proscribe every iota of human conduct. When we proliferate law to proscribe every instance of conduct, the law has become the master and the people its servant. Have we become so political correct that no one in Topeka has the kahonas to tell weeping parents that law is not meant to function to assuage their grief? Such function is for God, churches, family, and counselors. What the Bixby's have done, and I would not wish to bear their grief, is soothe their grief at the dimunition of the public's loss of freedom as a whole. Gov. Sebellius should summarily veto this bill for what it is-an attempt to make law out of irrational grief.

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Sigmund 5 years, 11 months ago

As to what type of testing, breathalysers are used at the scene for alcohol and if positive the suspect is arrested and transported to jail where blood samples can be taken and sent to be analyzed and the more precise results can be submitted into evidence at trial. The suspect can be released and not charged until those results come back.I won't deal with all drugs, but for THC I have to rely on the work of others. "The most meaningful recent study measuring driver "culpability" (i.e., who is at fault) in 3,400 crashes over a 10year period indicated that drivers with THC concentrations of less than five ng/mL in their blood have a crash risk no higher than that of drugfree users. The crash risk begins to rise above the risk for sober drivers when a marijuana user's THC concentrations in whole blood reach five to 10 ng/mL.http://www.mpp.org/library/marijuana-and-dui-laws-how.htmlWhen even a pro-marijuana group MPP, "recommends a policy similar to most state laws on driving under the influence of alcohol: A driver who fails a roadside sobriety test should be required to submit to a blood test by a trained medical professional - or risk criminal and administrative sanctions" I don't think your position, at least with respect to cannabis, is tenable. Like I said, there IS competent medical evidence out there on blood concentrations and the effects of various drugs and I am sure both sides will be represented at trial.http://www.icadts.org/oslo2005/Oslo2005-07.pdfThere may be various reason why the tests run by your lab is stamped the way it is, including procedures that do not maintain the legal chain of custody that would be accepted by courts, or the fact that they don't retain samples after testing, or the sample is completely destroyed in the testing. I wouldn't assume it is because the test is inaccurate or incapable of determining "under the influence."

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logrithmic 5 years, 11 months ago

Thank you Pro_Counsel. This is exactly what I was referring to in my post at 7:58. Very good back and forth to all. Glad to see the lawyers tuned in to this one.

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Pro_Counsel 5 years, 11 months ago

(continued from above)I do see some substantial differences between this law and both existing law and the example you gave of railroad engineers. Yes, by simply driving on public roads, you give implied consent to testing. But what kind of testing? A breathalyzer is not an invasive medical procedure. Drawing blood is. This is why the police at the scene can't take your blood, it can only be done by trained medical personnel, and it's ludicrous that the legislature is trying to define this as a non-medical procedure when it can only be done by medical practitioners. Also, railroad engineers (and airline pilots and truck drivers) are professionals, i.e. they drive for a living and for compensation, and they either carry passengers or operate vehicles with a substantially greater risk to the public than a personal car.As I mentioned above, the laboratory that we use adds a disclaimer to all their drug screen reports, that they are not sufficient for legal purposes. There is no reason to believe that the drug screening methods used pursuant to this law will be any different (and there is no requirement that it be any different specified in the bill). If the experts on testing say it doesn't meet the requirements for holding someone criminally liable, what is the purpose of testing, and if it is insufficient to demonstrate being under the influence (let alone impaired), doesn't this bill fail to fulfill its intended purpose?

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Pro_Counsel 5 years, 11 months ago

Sigmund (Anonymous) says: "Expert medical testimony can determine whether or not a given blood level of many common drugs would cause you to be "under the influence." "As I said in my reply to buggie7 earlier, I'm afraid I have to disagree on this one. And I am an expert on this subject.First of all, there is no requirement in the bill (at least there wasn't last time I checked, admittedly not the final version) for quantitative analysis. A screening test using a urine dip that just gives a positive or negative result would meet the requirements of the law, and is completely incapable of determining whether someone is even 'under the influence.'Next, there is no specified requirement in the new law that says what kind of testing must be done. Unless the rarely used and ungodly expensive GC/MS testing is performed (and this is rarely even available), we're talking some kind of immunoassay, and those test for metabolites in addition to (or even in place of) the actual drug. Metabolites are the byproducts, the substances that remain after your body has used the drug. The mere presence of metabolites can only tell you that there was recent exposure (and 'recent' is a relative term, it may be weeks for some substances), and again can not tell you if the person is 'under the influence.' It can not even tell you if you used a little a short time ago or a lot a long time ago. With alcohol, as long as the alcohol is detectable the person is still feeling its effects. With metabolites of other drugs, that is not the case.Third, with very few exceptions (mostly drugs which have a medical purpose, e.g. narcotic pain killers), there is no available data on how much it takes to be 'under the influence,' let alone impaired. For example, with something like fentanil, we know that action starts at a certain concentration. For marijuana, cocaine, methamphetamine, etc., we don't know where that line is.On top of everything else, immunoassay drug screening yields an obscene number of false positives.(more below)

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Sigmund 5 years, 11 months ago

bettie (Anonymous) says: "Still, though, they would have to balance the privacy intrusion with the interest being served. In the case to which you referred, there were different considerations on both sides of that balance than are present here. The railroad employees had a lower expectation of privacy than do ordinary drivers because they consented to work in an industry where they were routinely subject to drug tests - not so with the average driver."You also raise very real and very important points. Taken an airplane anywhere recently and feel the mandatory search was "unreasonable?" I certainly have. But the Courts have consistently found that the reasonableness of the search was closely tied to the circumstances and the governments interest in conducting the search. That same airport search would be likely be "unreasonable" if you were just walking down the street, but boarding an airplane or entering a court room and it is not unreasonable.As for railroad accidents, I would bet that far more people are injured or killed annually in automobile accidents Kansas than accidents that involve trains nationwide. Although engineers consent to the testing as a condition of employment, drivers also consent to testing as a condition of using Kansas roads. IMHO the only real issue that is left is the testing to be mandatory or left to the discretion of the officer who in the absence of the smell of beer or pot might not be able to discern the difference between being "in shock" or "shaken up" after an serious accident or "under the influence" of amphetamines, barbiturates, ecstasy, etc. Mandatory removes discretion and to the extent it treats those similarly situated equally regardless of the intoxicant tested for it might be an easier law to defend.I suspect that the change to KSA 8-1001 was based on another States existing law providing for mandatory testing and if I get a chance I might try and chase that down. In any case this law will be challenged shortly and we will see what the Courts say. I wouldn't bet large amounts of money on Supreme Court votes prior to the issue being raised. Scalia discounted the "feeble justifications" relied upon by the Court in Von Raab, believing instead that the "only plausible explanation" for the drug testing program was the "symbolism" of a government agency setting an example for other employers to follow. Who would ever have guessed Scalia and Stevens would ever agree on a drug testing case?http://supreme.justia.com/us/489/656/case.html

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bettie 5 years, 11 months ago

Sigmund:You raise very good points. I guess I should clarify my earlier statement. While I firmly believe drug tests of drivers without reasonable suspicion are unreasonable searches and therefore unconstitutional, I highly doubt the current Supreme Court will agree. Just last month, they upheld admission of evidence found in a search pursuant to an arrest, even though the offense (driving on a suspended license) was not an arrestable one in that state. Still, though, they would have to balance the privacy intrusion with the interest being served. In the case to which you referred, there were different considerations on both sides of that balance than are present here. The railroad employees had a lower expectation of privacy than do ordinary drivers because they consented to work in an industry where they were routinely subject to drug tests - not so with the average driver. In explaining the state's special interest (needed to outweigh the requirement of individualized suspicion), the court emphasized the great loss of human life that could result from one trainwreck. I'm absolutely not suggesting that the loss of one human life is not great, but it is certainly distinguishable from the loss of a train full of passengers. Normal law enforcement is not a special interest, capable of outweighing constitutional requirements. The court distinguished the safety regulation of railroad engineers from "normal law enforcement" in holding it was a special interest. I would argue that determining whether there is reasonable suspicion that a driver involved in an accident was under the influence is "normal law enforcement." But again, that's just my opinion, and I'm not placing any bets on whether the current Supreme Court would agree.

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justfornow 5 years, 11 months ago

The Hippies in Lawrence are in deep $hit, better start riding your Bicycle. K.U. has a Law degree program that might interest some of you, I heard it's very good.

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Sigmund 5 years, 11 months ago

bettie (Anonymous) says: "This bill removes the first requirement. - reasonable suspicion. That's the difference and in constitutional terms, it's a big one."As far as I can tell you are correct on the change, but incorrect with respect to the constitutional significance of the change. Mandatory drug testing has been instituted in a variety of situations where the Courts have found that the State has a legitimate "special interest" in protecting "public safety." With drug testing in particular SCOTUS has held that no warrant, probable cause, or even individualized suspicion is required for mandatory drug testing of train engineers involved in "major" accidents.http://supreme.justia.com/us/489/602/index.htmlMy guess is the States "special interest" in maintaining the safety of public roads coupled with existing constitutional "implied consent" statutes, that eliminating the already low standard of "reasonable grounds" and requiring mandatory (read, no discretion) drug testing after a "serious" accident on the public roads will not be a problem a majority of the U. S. Supreme Court.

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bettie 5 years, 11 months ago

The portion of the statute quoted above must be considered in context. The next section of the statute lists situations in which officers can request a person submit to testing. (Consent is presumed, in these situations, in the section quoted above.) Officers can request when TWO conditions are present:1. Reasonable grounds to believe the driver is under the influence of alcohol or drugs. 2. There's an arrest or an accident involving injury or property damage. This bill removes the first requirement. - reasonable suspicion. That's the difference and in constitutional terms, it's a big one.Keep in mind that reasonable grounds (or reasonable suspicion) is a much lower standard than probable cause and is very easy to show. Anything more than a mere hunch will usually amount to reasonable suspicion, so it is not as if the current language is preventing officers from testing drivers they suspect are under the influence. The officer in this case could have tested the driver if he had any reason to believe the driver was under the influence and he chose not to. The constitution protects our personal privacy by forbidding unreasonable searches of our persons. This bill would require testing in the absence of reasonable suspicion and such a search can hardly be reasonable.

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Sigmund 5 years, 11 months ago

Pro_Counsel (Anonymous) says:"Just out of curiosity, has the current law withstood challenges at the state or federal level, or both?"Similar laws of other states have been addressed by SCOTUS and if I recall correctly the Kansas consent statute has been before the Kansas Supremes. That statute is very similar to most other State's law. BTW, I thought it was a great question because that is the same reaction I had when I first encountered it and other "implied consent" statutes. Even the Drunk Driving Defense Lawyers Association (that is got to be a fun group of lawyers, "Fighting for your right to drive as drunk as you like till you you run out of money to pay legal fees or hit my Mercedes") agrees that this is current law with respect not only to "search and seizure," but Fifth Amendment rights not to be "compelled in any criminal case to be a witness against himself" and Sixth Amendment "a right to counsel in any criminal proceeding" challenges.http://www.dui1.com/Dui_Lawyers_Driving19.htm

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Pro_Counsel 5 years, 11 months ago

Sigmund (Anonymous) says: "Great, great question!"Thanks, I have my moments. :)Just out of curiosity, has the current law withstood challenges at the state or federal level, or both?

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Sigmund 5 years, 11 months ago

notajayhawk (Anonymous) says: "The problem being there is no "expert" testimony on the issue. There is no research or body of knowledge in existence that can say a blood level of x.xxx% of this substance causes impairment to drive, like there is for alcohol."Much of current law does not require that you be "impaired" just that you be "under the influence," for instance:21-3442. Involuntary manslaughter while driving under the influence of alcohol or drugs is the unintentional killing of a human being committed in the commission of, or attempt to commit, or flight from an act described in K.S.A. 8-1567 and amendments thereto."Expert medical testimony can determine whether or not a given blood level of many common drugs would cause you to be "under the influence." Whether or not you were impaired or this caused the accident, at least for KSA 21-3442, is not as important as the fact that you had enough in your system to be influenced and were driving.was_freashpowder (Anonymous) says: "This is the most rediculas law I have ever seen. Welcome to kansas A police state"All states have restrictions for driving under the influence of drugs or alcohol and the methods and procedures where drivers are to be tested, except of course State of Confusion.

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was_freashpowder 5 years, 11 months ago

This is the most rediculas law I have ever seen. Welcome to kansas A police state

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Sigmund 5 years, 11 months ago

Pro_Counsel (Anonymous) says ... "I'm not a lawyer either, but can a legislature define what is and isn't a constitutional right just by virtue of passing a law? Especially as we're talking about the United States Constitution, can a state legislature simply say "it's not a right?" How about if they passed a similar law requiring home searches in neighborhoods where gunshots were fired? Can the legislature merely pass a law saying the homeowner has no constitutional right to refuse permission to enter and search?"Great, great question! Yes they can and yes they do and unless or until the the Kansas or United States Supremes disagree with the legislature, it is the law. In the case of the current law that I quoted it has been challenged and upheld. Something about driving a car, which requires State registration, on public roads funded by the State, and requiring a State provided drivers licensed can reduce your rights to be free of "unreasonable searchs and seizures." It seems it is "reasonable" if you consent and you need to consent in order to drive on the roads. The Supremes have reserved the greatest protection against "unreasonable searches and seizures" for homes and houses.

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notajayhawk 5 years, 11 months ago

mom_of_three (Anonymous) says: "Evidently, there is a problem with the current law, as the driver who hit the teenager was not tested."1) The driver who hit their daughter could have been tested under current law if the police at the scene had a reason to suspect impairment. Apparently the driver gave them no indication to suspect as much.2) Even had the driver been tested and even if the result had been positive, that in itself does not, CAN not, demonstrate any level of impairment.I understand the Bixby's are trying to do something worthwhile. They did not accomplish that goal. They only got the legislature to pass a worthless piece of paper that makes it look like something's being done, and to shut the Bixbys up. Sympathy-laws are hardly ever a good idea.

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notajayhawk 5 years, 11 months ago

Sigmund;On the subject of exceeding its intended purpose, how about requiring testing even if there's no indication the driver was at fault? That is a substantial difference between the current law and the bill that was just passed."As for how much impairment was by intoxication of illegal drugs was the cause of the accident that will be a question for expert testimony put on by the prosecution and the defense and then decided by the jury."The problem being there is no "expert" testimony on the issue. There is no research or body of knowledge in existence that can say a blood level of x.xxx% of this substance causes impairment to drive, like there is for alcohol.

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mom_of_three 5 years, 11 months ago

Evidently, there is a problem with the current law, as the driver who hit the teenager was not tested. The family is just trying to fix a law they felt was flawed. Let's not attack the family or put down what they were trying to do.

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Sigmund 5 years, 11 months ago

notajayhawk (Anonymous) says: "I'm not an attorney, but isn't there something about a law being overly broad and exceeding its intended purpose?"Absolutely correct, there is. However the law already allows for breath tests and then blood test for alcohol and I don't see this law as much different. The statute I quoted is current law (not the "new" law) and it has passed constitutional challenge. As for how much impairment was by intoxication of illegal drugs was the cause of the accident that will be a question for expert testimony put on by the prosecution and the defense and then decided by the jury. dweezil222 (Anonymous) says:"... are both drivers going to automatically be tested? Or only the driver found to be "at fault?" I have a serious issue with a dramatic invasion of privacy for a driver who hasn't done anything wrong (say, one who gets T-boned by a driver who runs a red light ) but just happens to be involved in a fatal accident."It is illegal to drive while impaired even if you aren't involved in an accident. A person involved in an accident who is determined not be at fault for the accident but drugs are found in their system could only be charged with driving while impaired. What is your problem with that??

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Pro_Counsel 5 years, 11 months ago

Sigmund (Anonymous) says:(Or actually quotes, not says):"(2) the opportunity to consent to or refuse a test is not a constitutional right;"I'm not a lawyer either, but can a legislature define what is and isn't a constitutional right just by virtue of passing a law? Especially as we're talking about the United States Constitution, can a state legislature simply say "it's not a right?" How about if they passed a similar law requiring home searches in neighborhoods where gunshots were fired? Can the legislature merely pass a law saying the homeowner has no constitutional right to refuse permission to enter and search?Also, this law defines the collection of a sample (which may include drawing blood) as a non-medical procedure which does not require consent, and states that the results are not protected personal health information. I think they're going to have a hard time getting around federal law on that issue.

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notajayhawk 5 years, 11 months ago

Sigmund;I'm not an attorney, but isn't there something about a law being overly broad and exceeding its intended purpose? This law is, purportedly, intended to determine whether a person a) is under the influence of a drug, and b) whether that contributed to the accident. This kind of drug testing requirement can establish neither.

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dweezil222 5 years, 11 months ago

While this law has merit in principle, it's going to be a nightmare to enforce in anything resembling a fair manner. And it might well be unconstitutional.For one, tests for most drugs (pot in particular) cannot tell whether the driver was under the influence of drugs at the time of the accident, only whether the driver had used them sometime recently. I have a friend who's serving time for vehicular manslaughter because he smoked pot the night before he got into an accident where he was driving legally and got hit by a motorcyclist doing 15+ over the speed limit. Justice?Second, are both drivers going to automatically be tested? Or only the driver found to be "at fault?" I have a serious issue with a dramatic invasion of privacy for a driver who hasn't done anything wrong (say, one who gets T-boned by a driver who runs a red light ) but just happens to be involved in a fatal accident.

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Sigmund 5 years, 11 months ago

staff04 (Anonymous) says: "Unconstitutional. Will take a court about 30 seconds to strike this down as soon as someone challenges." Current law, KSA 8-1001 currently states:"(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 act, 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. A person who is dead or unconscious shall be deemed not to have withdrawn the person's consent to such test or tests, which shall be administered in the manner provided by this section.".... (f) Before a test or tests are administered under this section, the person shall be given oral and written notice that: (1) Kansas law requires the person to submit to and complete one or more tests of breath, blood or urine to determine if the person is under the influence of alcohol or drugs, or both; (2) the opportunity to consent to or refuse a test is not a constitutional right; "http://www.kslegislature.org/legsrv-statutes/getStatute.do?number=1780KSA 8-1001 has been challenged many times and survived. So what is your basis for your considered legal opinion that the current Bill modifying 8-1001 is unconstitutional?http://www.kslegislature.org/bills/2008/2617.pdf

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Pro_Counsel 5 years, 11 months ago

b3 (Anonymous) says: "It doesnt matter when the driver has done the drugs, they are illegal. Idiot. All of you pot smokers had better keep an eye on that rearview mirror."So is cheating on your taxes, and both have about as much impact on whether the driver was at fault in an accident.***********Buggie7 (Anonymous) says: "Blood alcohol can be checked with the concentrates at the time of accident. Also, to the idiot above drugs test can be given in the same manner in which they can find out the concentration levels in the body at the time of the accident. If they had done drugs a few days earlier it will not be as concentrated as if they were to do drugs that would have caused the accident."I'm sorry to have to tell you that you're wrong on this.First off, only expensive and rarely used methods of drug testing can determine concentrations at all. For the most part, most testing is qualitative, not quantitative (or at least it only gives concentrations within a narrowly limited range), and there's nothing in the bill that says quantitative analysis is required. And even if you have a number, it tells you absolutely nothing. Say someone has a positive result for cannabinoids at 65 ng/ml; you have no way of knowing from that whether the person was an extremely heavy user and quit 2 months ago, a steady user that quit 2 weeks ago, someone who smoked a joint 2 days ago, or someone who was riding in a car with everyone else but him smoking 2 hours ago. And on top of all that, suppose you could tell how recently someone had used? What is the concentration of cannabinoids that causes impairment? The answer is that we don't know. Other than alcohol, there is no established level of any drug for determining whether a driver is impaired. The bill in question does not give limits like the alcohol laws do, because those limits have not been established (nor can they be).Also, there are literally thousands of compounds listed in the PDR that can cause drowsiness or other impairment. A typical drug screen tests for 7 or less. What that means is that someone who took a prescribed painkiller two days ago might be found guilty (and lose everything they own in civil court) while the other driver may literally get away with murder if taking one of the thousands of substances that will not be caught.I work in a large community mental health center, and we use one of the biggest and most respected laboratories in the area for our drug screens. There's a disclaimer at the bottom of every one that says they can not be used for legal purposes, e.g. revocation of probation or parole, for the reasons I have noted above.

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Sigmund 5 years, 11 months ago

logrithmic (Anonymous) says: "With all due respect to the family, this person should have been charged with vehicular manslaughter."Not sure what "vehicular manslaughter" is nor what the penalty can be imposed. Did you mean "Vehicular homicide" a class A misdemeanor?21-3405. Vehicular homicide is the unintentional killing of a human being committed by the operation of an automobile, airplane, motor boat or other motor vehicle in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.http://www.kslegislature.org/legsrv-statutes/getStatute.do?number=11671Or did you mean "Involuntary manslaughter while driving under the influence of alcohol or drugs" a severity level 4, person felony?21-3442. Involuntary manslaughter while driving under the influence of alcohol or drugs is the unintentional killing of a human being committed in the commission of, or attempt to commit, or flight from an act described in K.S.A. 8-1567 and amendments thereto.http://www.kslegislature.org/legsrv-statutes/getStatuteFile.do?number=/21-3442.htmlNot sure there is a "vehicular manslaughter" in Kansas Law.

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b3 5 years, 11 months ago

Defender, last time I checked beer wasnt illegal. Once again another ignorant statement by you. You should really try thinking before posting adolesent thoughts between puffs on your bong.

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beobachter 5 years, 11 months ago

Hope Sibelius hasn't used up all the ink in veto pen on the coal plants. This is just as bad a law.

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staff04 5 years, 11 months ago

Unconstitutional. Will take a court about 30 seconds to strike this down as soon as someone challenges.

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justfornow 5 years, 11 months ago

Newton's Third Law of Motion: For every action there is an equal and opposite reaction. I'm convinced that the liberals stance on illegal immigration has ruined it for everyone. Big Dummy's, enjoy.

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lawrenceguy40 5 years, 11 months ago

A bad law! What is next? You have an accident in your car and they use that to check you never lied on your tax forms? What about that used mower you bought? Fenced goods? I mean, you ran a stop sign, so you must be a habitual offender, right?Drive safely people!

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Buggie7 5 years, 11 months ago

I agree, Although I feel for the family here you should have probable cause. Blood alcohol can be checked with the concentrates at the time of accident. Also, to the idiot above drugs test can be given in the same manner in which they can find out the concentration levels in the body at the time of the accident. If they had done drugs a few days earlier it will not be as concentrated as if they were to do drugs that would have caused the accident.

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deec 5 years, 11 months ago

I haven't read the bill, but what constitutes a "serious injury?" Will all drivers involved be tested?

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OnlyTheOne 5 years, 11 months ago

There's already means for an officer to test for drugs - this is an unnecessary step. Why isn't somebody asking "why wasn't the driver tested by the officer in charge?"

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Defender 5 years, 11 months ago

Hmmmm, court battle that cannot possibly be won?"It doesnt matter when the driver has done the drugs, they are illegal. Idiot. All of you pot smokers had better keep an eye on that rearview mirror."By your idiot logic, a person that drinks a beer, then has a wreck a week later would be liable for the wreck. Not only is this incredibly ignorant and wrong, but I've had enough of your hate, b3. I am suggesting to the admin that your account be revoked.

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Mkh 5 years, 11 months ago

b3...you are such a big government commie liberal and you don't even know you are what you pretend to hate...very funny.This is a horrible law which completely perverts the 4th Amendment, how is failing to yield "probable cause"? It's not. Failing to yield has never been considered probable cause, nor has simply being in an accident, whether a fender bender or fatal.

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b3 5 years, 11 months ago

It doesnt matter when the driver has done the drugs, they are illegal. Idiot. All of you pot smokers had better keep an eye on that rearview mirror.

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labmonkey 5 years, 11 months ago

If we required law enforcement to do their jobs, this accident would not have happened in the first place as the driver was an illegal immigrant. But lets not even mention that....

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logrithmic 5 years, 11 months ago

Another example of big government Commieservative government...With all due respect to the family, this person should have been charged with vehicular manslaughter. And what if you fail a "drug test" It is well known that some drug residue stays in the body for up to a month. Yet this does not mean the person was doing drugs at the time of the accident. In other words, the state will still need to meet the burden of connecting the drug use to the accident. And I for one don't think it will be able too.

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b3 5 years, 11 months ago

Bravo lawmakers, for finally doing something good for a change. Hopefully this will help keep the drugs and deadbeats off the roads or at least in jail longer.

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