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Archive for Sunday, August 22, 2010

Branson pushes for DUI search warrants

Charles Branson wants officers to pursue warrants for blood tests when drivers refuse to take a breathalizer.

August 22, 2010

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Douglas County District Attorney Charles Branson knows that without breath or blood test results, it can be difficult to convince a jury to convict someone of driving under the influence.

“It’s the ‘CSI’ age. Everybody wants proof. They want a test,” Branson said.

But getting drivers to voluntarily submit to these tests sometimes can be a tough job for police.

Suspects with multiple DUI offenses on their record often know the ropes: If they’re pulled over on suspicion of drunken driving, they won’t consent to any test. The Kansas DUI Commission in a 2009 report estimated one-third of people stopped refuse a breath test.

By not participating in a breath test, they’re willing to take the automatic one-year driving suspension imposed by the Kansas Division of Motor Vehicles, whether convicted or not, instead of giving prosecutors more evidence in a criminal case, Branson said.

Then the main evidence in court typically comes down to the officer’s testimony about the suspect’s behavior during the stop, including breath smelling of alcohol, bloodshot eyes and slurred speech. But juries want more, Branson said.

Now the district attorney’s office is asking Douglas County law enforcement officers to always seek a judge’s search warrant to draw blood for testing when a DUI suspect refuses to take any test.

It’s part of a larger effort to crack down on drunken driving in Douglas County.

“What we’re looking to do with the search warrants is give us the evidence to go forward with those criminal cases, especially on the people who have been there before because they are the ones who cause the most problems,” Branson said.

Skeptics

Some defense attorneys are calling the practice excessive.

“We have videotape that juries can be shown,” Lawrence defense attorney John Frydman said. “If someone’s staggering and stumbling, you can see it or hear it. If they’re not, you can see it, too, so it cuts both ways.”

Frydman understands why prosecutors want blood tests as evidence because he’s been successful in defending people who don’t voluntarily take breath or blood tests.

He said it raises civil liberties issues and it seemed a majority of DUI cases still end with a conviction even if the defendant refuses to take a test.

But Karen Wittman, an assistant Kansas attorney general and Kansas traffic safety resource prosecutor, said the tests are in place as a safeguard for the innocent as well.

“Chemical tests eliminate mistakes from objective observation alone, and they disclose the truth when a driver claims that he has drank only a little and could not be intoxicated,” she said.

Branson said multiple-DUI offenders are coached to barely even speak to officers if they’re stopped in addition to refusing to take any tests.

He said officers still must convince a judge they have probable cause for the blood test on a suspect who is age 18 or older.

Procedure

It likely will apply to only a handful of DUI stops, Branson said.

For instance, last weekend 26 people were booked into Douglas County Jail on some type of drunken driving charge, and only one person refused all tests. A Kansas Highway Patrol trooper obtained a search warrant from a judge, and the man was taken to Lawrence Memorial Hospital to get a blood sample.

The sample was sent to the Kansas Bureau of Investigation for testing. Officers are instructed not to tell the suspect they are applying for a search warrant to prevent the appearance of coercion. The blood sample for the most part must be taken within two hours of the person last operating a vehicle.

In the past, law enforcement officials here and in other counties have focused on getting these warrants periodically, like during a busy weekend, but Wittman said Douglas County would be the first to make this a normal practice.

Other states, such as Texas, have had success at reducing refusal rates, she said. She hopes it will reduce drunken driving overall.

“You would think that if you knew that no matter what’s going to happen they’re going to find out, then that might have a little bit of a chilling effect of you drinking and driving,” Wittman said.

Douglas County already has one judge on call every weekend to review warrants.

Branson said the warrants are part of a multifaceted approach to prosecuting DUI cases in the county. His office received funding for next year’s budget to add an attorney position in January. The staffer will be a DUI and traffic specialist prosecutor who would concentrate on multiple-offender DUI cases.

The cases can get backlogged in the system because they often require tracking down records from other jurisdictions on past convictions. He said that makes it difficult to file those cases and makes them more time-consuming.

“What we’re hoping to do with the search warrants and with having a dedicated person to review these cases,” Branson said, “is to shorten that time frame and have the consequences much closer to the event to try to reduce the number of DUI cases we see in Douglas County and reduce the number of repeat offenders on the roads.”

Comments

sciencegeek 3 years, 7 months ago

Most of the writers here have overlooked a major point: driving is a PRIVILEGE, not a RIGHT. Driving under the influence is a conscious CHOICE. We aren't talking about poor, innocent victims here. No one forced them to drink, get into a vehicle weighing a thousand pounds and capable of moving at high speed, and unleashing it on every other human being in their path.

While you're talking about legalisms and inaccurate breathalyzers, thousands of people every year are killed by drunk drivers. Anyone who's lived in Lawrence knows this happens. Have any of you lost a friend or loved one to a drunk driver? I've lost two--one was a pedestrian, the other a passenger in another car. I was injured by a drunk driver myself while sitting at a stop light. We were all innocently minding our own business when our lives were changed, or ended. Who speaks for us?

If you don't like the warrant idea, come up with a better idea. But do it quick, before you become one of the TRUE victims of drunk driving.

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HedleyLamarrr 3 years, 7 months ago

This looks like an issue that is ripe for the Supreme Court.

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Bob Kraxner 3 years, 7 months ago

Police are not interested in curbing drinking and driving... if they were, someone would have come up with some type of transportation system that runs late at night, (like the buses should do) so that people who wish to go out and drink, could have reliable transportation from the bar to their home. Lawmakers only wish to make it easier for cops to get evidence against a suspect, in order to get more convictions, in order to justify the excessive amount of lazy a$$ police that lawrence already has. It should remain against the law to force anyone to give a blood sample in any DUI case except those involving a serious injury or a death.

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emily_litella 3 years, 7 months ago

Why do we need to hear about what goes on in Branson? I've been there and it's not all that great.

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Sigmund 3 years, 7 months ago

"The man was booked on multiple charges, including attempting to elude, reckless driving, failing to report an accident, driving while intoxicated, driving while suspended and leaving the scene of an accident." "Lawrence man arrested after car chase", August 22, 2010, LJWorld Online http://www2.ljworld.com/news/2010/aug...

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Sigmund 3 years, 7 months ago

"For instance, last weekend 26 people were booked into Douglas County Jail on some type of drunken driving charge, and only one person refused all tests."

So 26 DUI's on a typical weekend and how many drunk driving deaths last couple of years? Repeat drunk drivers know to refuse all test to minimize penalties and seeking a search warrant is already within current law? I almost never agree with Branson, but the police should have already have been doing this. My only disagreement this time with the DA is this long overdue.

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lionheart72661 3 years, 7 months ago

You know what I like? Our governor will raise taxes on food and cigarettes but put on the brakes when it came to raising the price of alcohol or just enforcing an old law. Now th DA is whinning about wasting judicial time to get a search warrant to obtain blood samples. That will mean dragging a Judge out of bed at 3 in the morning to get the search warrant. No what we need to do is have stricter laws on alcohol, tax the crap out of it like they did cigarettes. Underage and irresponsible drinking is a major issue throughout the country, not just Lawrence. So NO to warrants and YES to taxing liquor. I don't drink nor do I smoke so yes i am unbiased to this issue.

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pigballin 3 years, 7 months ago

Ok ,,there is hypocrisy by the state.The state let's eateries start serving alcohol and then want to mandate tougher driving laws.How hypocritical is this ?A lot.Pure asinine. I would bet most DUI'S are from younger age drinking 5 % beer now served in reastaurants,pool halls,etc. So here is the deal state legislatures,prosecutors,bureaucrats,,,since that appears the case,,pass a law that only 3.2 % beer can be sold in drinking public drinking establishments.

By the time so many beers are consumed by the beer drinkers, they just might be able to operate a vehicle without going over the limit. So there you go congressmen, do what is right and prudent for the highways and streets of Kansas.

I am writing the congressmen to take this into strong consideration.

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grimpeur 3 years, 7 months ago

When you get a driver's license, you agree to abide by certain rules and are certainly subject to stops by law enforcement. They can check your breath, your speed, your license plate and status, your eyes, your speech, your balance. Sometimes they can check your car. If you're under the delusion that some civil right is being violated when you agree to these well-known and perfectly reasonable terms, what, then, is the best way to remove a drunk driver from the road?

Ask a typical local lawyer how much of their practice is devoted to DUI/DWI. Why? Because the loopholes exist to be exploited. Remove the loopholes, remove the payoffs and the stupid fake "traffic classes" for forgiveness of points on your driving record, remove the second and third and fourth chances for DUIs, start figuring out how to suspend and revoke licenses, impound vehicles and jail repeat bad drivers consistently, quickly, and permanently, instead of giving them an loophole so that they can keep driving. That's backwards and irresponsible. Stop fooling around with these cretins.

Don't like these rules? Then don't drive. Afraid the breathalyzer will show positive, or that the margin of error is too big? Don't drink and drive. You say you need your car for work, or your family depends on it? Then you're an even bigger loser for risking it. Think your personal privilege to drive drunk, recklessly or aggressively trumps the rights of your fellow citizens to their public safety and order? Think again.

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thuja 3 years, 7 months ago

Instead of suspending your license for a year for refusing the test, you should lose it for ever.

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somebodynew 3 years, 7 months ago

A different perspective - -

First off, no one (even the Government) is taking any rights away from anyone. While I do not expressly agree with what Branson is proposing, I am trying not to be swayed by extremist talk either. We are free from searches (in most part) EXCEPT by a warrant. The police do not just write out a warrant and attack. It has to be reviewed by a DA and then signed by a Judge, showing proper probable cause. That procedure follows the laws (rights) of individuals.

Second - On the hit and run topic. It would be nice if this worked for them, but it probably won't unless they are caught right away. Did you catch the sentence in the story that talked about needing to be done within 2 hours??? Most of the hit and runs aren't caught for a couple of days, negating the possibility of getting a warrant.

That also goes to my problem with the whole story. Nowhere does this story discuss how Branson is going to streamline the process so the cops can actually GET a search warrant within 2 hours. (Not very likely unless a new system is in place.) And, where are all the cops required going to come from???? Somebody has to guard/watch the alleged drunk while the office who witnessed the driving fills out the affadavit and gets it signed, then take the person to the hospital (which just might be busy with emergencies), and Oh, yes - something tells me there are other calls just stacking up on other matters the police have to deal with.

Now, I hope Branson has already approached this topic with the Chief, Sheriff, Directors and Hospital, but somehow I doubt it.....

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Practicality 3 years, 7 months ago

"why not try to go after something a little more important-like drunk drivers running over cyclists, pedestrians, or boats or whatever-and leaving the scene?"

But how are they supposed to go after them when the individual refuses to submit to a test to prove they were drunk?

"For the most part, I agree there's no legitimate reason for refusing the breathalyzer. Except they aren't always accurate. If the machine was operated improperly, not calibrated correctly, or not working as it should, it's possible to get an invalid 'positive' result."

The blood test would eliminate the inaccuracy though.

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timeforachange 3 years, 7 months ago

The answer to fixing our nations alcohol problem is not by taking away my rights as an individual. Giving the police the right to invade and violate by body is NOT the answer. This slippery slope I'd rather not go down.

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puddleglum 3 years, 7 months ago

"And, um, incidentally, it says "he’s been successful in defending people who don’t voluntarily take breath or blood tests", it doesn't say they were driving drunk. Your assumption that the ones he got off were guilty anyway is precisely why need have the system of justice we do, particularly the assumption of innocence."

EXACTLY! a court order to draw blood? my GOD. why not try to go after something a little more important-like drunk drivers running over cyclists, pedestrians, or boats or whatever-and leaving the scene? We read about this happening all the time so do something about it.

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slowplay 3 years, 7 months ago

I wonder how many of Frydman's clients went on to injure, maim or kill someone after he got them off and back behind the wheel.

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Kat Christian 3 years, 7 months ago

Have they nothing else more important to spend their time and money on? Not to say driving drunk isn't an important issue, but this is just putting a bandaid on the real problem. First we have too many bars here in Lawrence. 2nd Lawrence promotes "PARTY TIME" or allows the University Culture to promote it. So what do you expect when the town is pushing out liquor to these young people who are obviously too irresponsible to drink responsibly.
Plus...stated in the article: The cases can get backlogged in the system because they often require tracking down records from other jurisdictions on past convictions. OMG they spend less time tracking down past records of repeated violent criminals who steal, rape, child molest and murder and they want to spend more time tracking down past records on DUI's? I was told that past offensives cannot be entered into a new criminal offense. BULL....Yet the courts here want to bring up past DUI offenses? If past DUI offenses can be brought up in court then so should past criminal offenses and that goes for all court issues, including child custody cases.
Mr. Branson spend that money and time on the repeated violent criminals back cases and working with the University to curtail alcohol provided parties to these young people. Close down some of these bars downtown. Make this town more family friendly instead of a party zone.
Getting a warrant to invade a person's body is setting another domino affect of taking personal rights away from people. Don't get me wrong drinking and driving is a serious problem, but trying to work against our consitutional rights is worse and its just putting a band-aid on the real problems of working to change the party mentality culture that this town has allowed to grow to appease the University.

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Flap Doodle 3 years, 7 months ago

Wow, the hyperbole meter is maxed out.

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sherbert 3 years, 7 months ago

Then just make it mandatory to take the breath test and not optional, if it's going to be forced anyway. Why waste time and money, plus extra work by the hospital, to take them in for a blood test.

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Amy Heeter 3 years, 7 months ago

How does this apply to hit and run drivers?

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hipper_than_hip 3 years, 7 months ago

What they are telling you is it is NOT your body your choice. They can and will penetrate you and transfer bodily fluids. Make no mistake--just because it's a needle in your arm vs. something else in your something else doesn't make it any less an act of rape, which we're told is about dominance, power and control, not about sex.

They are telling you they can mount you and take you any time they want.

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ljwanonymous 3 years, 7 months ago

How many times have you been arrested? And how many convictions?

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equalaccessprivacy 3 years, 7 months ago

Douglas County prosecutors are blackguards who don't mind exploiting tampered evidence if they get it in their corrupt,southern-justice-minded heads to persecute and frame an innocent person. What an ignorant and hateful place Lawrence is!

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equalaccessprivacy 3 years, 7 months ago

Douglas County prosecutors are blackguards who don't mind exploiting tampered evidence if they get it in their corrupt,southern-justice-minded heads to persecute and frame an innocent person. What an ignorant and hateful place Lawrence is!

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