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.
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.
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.”