DUI loophole

Legislators should close a key loophole in the state’s new DUI law.

August 23, 2011


With its new DUI law that took effect on July 1, Kansas is getting tougher with those who drink and drive. The law also establishes the state’s first centralized DUI database, allowing prosecutors easier access to a Kansas driver’s full DUI history.

Starting with the first offense, a motorist gets a misdemeanor, a 30-day license suspension, an ignition interlock for a year, two days to six months in jail or 100 hours of community service and a $1,000 fine. Penalties increase for each conviction, leading up to a fourth offense. At a fourth conviction, the driver faces a felony, 45-day license suspension, ignition interlock for three years, 90 days to one year in jail and a $2,500 fine.

These are good changes.

But there is a loophole in the new law, according to state Sen. Tim Owens, R-Overland Park, who spent five years trying to reform Kansas DUI laws. If the driver is asked by the officer to take a Breathalyzer test and fails, he or she is subjected to jail time, a fine and the ignition interlock device.

The loophole comes in when a driver refuses a Breathalyzer test. By refusing the test, the driver would face a one-year driver’s license suspension and the interlock for one year. However, although the driver could still be prosecuted for DUI, it’s far more difficult to gain a conviction without the Breathalyzer evidence. Prosecutors are left with field sobriety tests administered by the on-scene officer, said Owens, who has been a prosecutor, defense attorney and judge in his career. He said he’s seen cases in which someone refuses a test and evades a conviction for DUI.

Months before the new law took effect, Douglas County prosecutors were working with law enforcement to improve the chances of successfully prosecuting DUI convictions. District Attorney Charles Branson said his office requests that all officers get a judge to sign a search warrant to get a blood draw within two hours for all DUI suspects who refuse to submit to breath or blood tests as part of the traffic stop or DUI investigation.

“We are able to file cases that we were not able to file before,” Branson said of his policy.

That’s good news for prosecution, and helps to address the loophole in the new DUI law, but it sounds like a lot of work. Also, how many Kansas counties will do what Douglas County is doing?

Long term, it would be better for Owens and his colleagues to seek a statewide solution by closing the Breathalyzer loophole.


Clinton Laing 6 years, 10 months ago

Why allow anyone to refuse a breathalyzer test? Is this from some kind of misguided sensitivity about self incrimination? I thought that issue was moot when driving a vehicle, something that is widely agreed upon as a privilege and not a right. Somebody 'splain this, please!

jafs 6 years, 10 months ago

I suppose the question is more about reasonable search and seizure.

If somebody is driving erratically, and an officer has reason to believe they've been drinking. is it a reasonable search to require a breathalyzer test?

jafs 6 years, 10 months ago

Courts have apparently concluded that our personal protections are considerably less when driving a vehicle than when inside our home, or simply walking on the street. I don't necessarily agree with that idea.

The question is whether or not a breathalyzer is a "reasonable search" under the circumstances in which it's conducted.

Ron Holzwarth 6 years, 10 months ago

If you're under arrest at the time for a reasonable reason and there is a reasonable reason for a blood draw, which is the only time that would be legal, yes, you might be right, it might be a mess.

For you. From a quick search on the web, it could be either a misdemeanor or a felony, depending upon the exact circumstances and your prior criminal history. The exact sentence would be up to the judge.

cowboy 6 years, 10 months ago

Hold them in jail for the maximum time before setting bond, 24 , 48 hours whatever the law allows. Let there be some immediate impact rather than hanging around in booking for an hour then getting released. Might make a little stronger impression on people if you have to miss a day of work or be away from home for a day or two. You have some time to think about it. All of the delayed punishments which come down on you 4 - 6 months later from the court do not have the impact of sitting in a cell .

Ron Holzwarth 6 years, 10 months ago

"4 - 6 months later"

I think you're a bit off there on the way low side.

It is possible to almost endlessly get continuances. In fact, sometimes you can "time out" on a DUI charge because you have been able to get so many continuances that the officer that originally made the arrest is no longer employed by that law enforcement agency, and is then no longer available to testify. And, without his testimony, it is sometimes difficult for the DA to get a conviction.

I used to know someone who was apparently trying that technique, and it seemed to be working quite well for him.

jafs 6 years, 10 months ago

I see far too many stories in the local paper about DUI related fatalities and injuries.

In order to collect data on this program, we'd have to implement it and then collect the data - let's see what the numbers look like in a few years.

Ron Holzwarth 6 years, 10 months ago

ratfamily, your math does not seem to add up very well.

clipped from: http://askville.amazon.com/people-killed-drunk-driving-60-minutes/AnswerViewer.do?requestId=56822416' "60 Minutes' reports that drunk driving is responsible for the death of 13,000 Americans a year. Drunk driving kills more than 13,000 Americans a year - that's one every 39 minutes."

clipped from: http://www.car-accidents.com/pages/stats.html "Car Crash Stats: There were nearly 6,420,000 auto accidents in the United States in 2005. The financial cost of these crashes is more than 230 Billion dollars. 2.9 million people were injured and 42,636 people killed. About 115 people die every day in vehicle crashes in the United States -- one death every 13 minutes."

Pete Kennamore 6 years, 10 months ago

His question wasn't whether drunk driving causes accident or death, the question was do these measures reduce the number of occurences.

Ron Holzwarth 6 years, 10 months ago

I think jafs was right: "In order to collect data on this program, we'd have to implement it and then collect the data"

Ron Holzwarth 6 years, 10 months ago

"However, there were only .49 vehicular deaths per 100 million miles driven in Kansas in 2010 due to impaired drivers. And that is total deaths!"

So, property damage, smashed cars, missing legs or arms, wheelchairs for the rest of your life, helicopter rides, ambulance rides, or hospital bills don't count at all?

Guess not.

Ron Holzwarth 6 years, 10 months ago

I just now noticed part of your posting, ratfamily.

"I didn’t finish fifth grade."

That certainly explains a lot.

Adrienne Sanders 6 years, 10 months ago

This isn't clear to me: By refusing the test, the driver would face a one-year driver’s license suspension and the interlock for one year.

So you get your license suspended for one year, and then after that you have to have the interlock for a year, making it a total of two years of pain in the ass punishment? Seems like a pretty good deterrent for me, the punishment for not taking the breathalyzer is way harsher than taking it and failing.

Ron Holzwarth 6 years, 10 months ago

I had an interesting experience a few years ago. I was driving on the Interstate in Topeka with both front car windows down, and it became rather chilly in the car. So, I slowed down just a bit to get behind all the cars around me, just in case, and then leaned over to roll up the passenger window. I didn't have power windows at the time. At no time did I ever more than glance off the road if indeed I even did that, and I'm very sure I didn't get out of my lane at all.

And, there was a police car right behind me, and one of the officers noticed my car swerving ever so slightly within my lane. So, he turned on the twirly reds and pulled me over. I signalled right, pulled onto the shoulder, and put on my emergency flashers.

One of the officers used a flashlight from the passenger side to inspect the interior of my car to see if it was free of clutter and vacuumed nicely, and I apparently passed his cleanliness test.

The other officer asked me where I had been, and where was I going?

I answered truthfully, "I just left a bar and now I'm headed for a restaurant."

I don't know why, but for some reason he wanted me to breath into a tube after that.

He seemed to be a bit surprised when I registered 0.0 % on the machine, I don't know why he was surprised, because I hadn't been drinking any alcoholic beverages at all. Some people actually do that in bars. But I have to admit, bars and the people in them almost always seem rather boring, and so I very rarely do that.

Then they told me I was free to go, and I was not issued a citation.

Good thing I submitted to the test, huh?

Casey_Jones 6 years, 10 months ago

How is this a loophole? What happened to innocent until proven guilty? If it can't be proven that I committed a crime, that means that a) the cops aren't doing their jobs, or b) I didn't commit a crime.

If I'm going to be accused of a crime that could potentially cause thousands of dollars in expenses and two years of restricted driving, they damn well better be able to prove I actually did it! According to the law, guilty people who refuse a breathalyzer automatically have their license suspended for a year. On the other hand, innocent, safe drivers who may have had a drink or two with dinner, are at the mercy of a notoriously finicky machine used to enforce a "magic number" for impairment. If you're guilty of drunk driving, denying the breathalyzer is a huge gamble, and increased penalties for trying to get away with it reflect that gamble.

Where's the loophole?

jafs 6 years, 10 months ago

Well, one example might be somebody who refuses a breathalzyer test at the scene of an injury accident.

If it can't be proven that they were DUI at the time of the accident, the law may treat them more leniently.

Because DUI may be "reckless endangerment" rather than simple "negligence" in operating a motor vehicle.

Cant_have_it_both_ways 6 years, 10 months ago

Maybe they should draw blood after every accident and check for THC as well as booze? At least booze is legal.

jafs 6 years, 10 months ago

How about they check for intoxicating substances of whatever variety when there's good reason to believe the person driving is under the influence of them?

Ron Holzwarth 6 years, 10 months ago

jafs, I can speak with authority about that subject, because I got involved with someone else's problems with DUI charges (#2 & #3) and drove him repeatedly to DUI court in KCK so he could continually get continuances and maybe stay out of jail. Well, I mean, not go back, he had to be bailed him out of jail a couple times and get his car out of the impound lot also.

He also collided with fixed objects (a curb, traffic cones, a parked car, and finally a big bush in the ditch). He also got a citation for illegal U turn. And, I think 3 citations for driving while suspended (#3 is a felony). He did miss the pedestrian though, but by only a few inches. That list may not be complete, those are only the offenses I know of.

Finally, he finished off his car in a grand fashion by driving off the left hand side of the highway and into the ditch. His story about exactly how that had happened changed a few times.

Well, I digressed a bit there, I tend to do that when I'm POed. Back to the point:

I became a regular at DUI court in KCK, to the point that the guard began to only glance at me arriving, and not even looking at me again because I was going to DUI court so often. That last time, the guilty! party acted so contrite while talking to his lawyer and the judge, then as we were leaving court again! he laughed and said: "I got a continuance! Mark the fourth of next month on your calender!"

I thought, What? I've driven you here 5 or 6 times, and there has been no progress on the case at all?

Very soon after that, his private taxi service came to an end, because I quit.

I looked up the law on DUI. Kansas law allows DUI convictions based on any substance that is intoxicating, not just alcohol. Even drugs that are legally prescribed.

Blood tests can and are taken in some cases for illegal substances, and that will stand in court for a DUI charge.

And, if it's a legally prescribed drug, when used to excess to an intoxicating level, yes, you can get a DUI conviction for that also.

That was the guilty! party's offense. He had been taking far to many of his benzodiazepines and painkillers and then driving when he got his DUIs and had his wrecks. If you had ever been a passenger in his car, seen him drive, or if you were to ever see the police dash cam video of him driving his car, you would certainly agree, he is GUILTY!

Ron Holzwarth 6 years, 9 months ago

Oh, another thing. When he's done in KCK, he has quite a few things to talk about with the judge here in Lawrence.

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