Archive for Friday, January 7, 2011

Kansas Supreme Court rules Douglas County judge was wrong to acquit man charged with DUI

January 7, 2011


— The Kansas Supreme Court on Friday ruled that a Douglas County judge was wrong to acquit a man charged with driving under the influence after a dispute arose about the accuracy of a breath test.

The case stems from the Aug. 19, 2007, arrest of Paul Finch. A sheriff’s deputy stopped Finch for weaving in and out of his lane, according to court records.

He was taken to county jail where he submitted to a breath test. The Intoxilyzer 5000 measured a blood-alcohol content of .080 grams, which is above the legal limit to drive a car.

Finch’s attorney argued the reading was insufficient to find him guilty of DUI beyond a reasonable doubt. Testimony during the trial indicated the Intoxilyzer machine showed variances between simulated tests. A law enforcement officer testified the variances were within a normal range and that the simulations couldn’t exactly replicate when a person was tested.

But District Court Judge Robert Fairchild agreed with the defense, granting a motion to acquit. Finch pleaded guilty to a remaining charge of failure to maintain a lane. The Douglas County District Attorney’s office asked the Kansas Supreme Court to consider the issue.

The Supreme Court said Fairchild made a mistake.

“The fact that the defense challenged the reliability and accuracy of the state’s evidence, introducing the concept of margin of error and prompting the officer’s stubborn insistence that no Intoxilyzer error was possible, made the case one for the jury’s evaluation and decision,” wrote Justice Carol Beier. “By granting the motion for judgment of acquittal, the judge erred. The evidence was neither so weak nor so strong that acquittal or conviction was assured as a mater of law. The jury should have been permitted to discharge its duty,” Beier wrote.

Douglas County Assistant District Attorney Nicole Romine said the Supreme Court decision simply clarifies how judges should treat cases where there is an argument over the accuracy of an Intoxilyzer result. Finch cannot be re-prosecuted on the DUI charge, she said.

But Romine said, “We are very happy with the result.” She said the state Supreme Court ruling makes clear that juries should be allowed to weigh the arguments over an Intoxilyzer result.


just_another_bozo_on_this_bus 7 years, 4 months ago

"the system is broke!"

The "system" would be the US Constitution, which prohibits double jeopardy.

Ron Holzwarth 7 years, 4 months ago

There would then be an appeal, and the defendant can get a new trial. Legal proceedings can be very confusing.

Say for instance, it was discovered that a murder victim was found to have been shot with a 22 rifle instead of a 357 Magnum. You would be against a new trial in that case, because there was an "error found later"?

just_another_bozo_on_this_bus 7 years, 4 months ago

Once you've been acquitted, you can't be tried on the same or similar charge again. The same does not hold if you've been found guilty, but the conviction is later overturned. Whether or not there is a new trial on that charge varies from case to case.

jafs 7 years, 4 months ago


Her question is why not simply dismiss the verdict in that case.

Why is it ok to be tried twice or more times if convicted, but only once if acquitted?

It seems unfair to those improperly convicted.

Ron Holzwarth 7 years, 4 months ago

It might seem unfair, but it depends upon the crime. There are many terrible crimes that are commited that shouldn't be allowed to simply let slide, based simply on procedural errors in the first trial.

Our criminal justice system is far from perfect, but compared to most others in the world today it's certainly one of the best.

I'm sure that if Number_1_Grandma had been the victim of a crime, and an error had been made in introducing the address at her home during the trial, she would be the very first to demand a new trial to correct that error, instead of simply allowing the perpetrator to go free because of a simple clerical error.

jafs 7 years, 4 months ago


But doing so would force prosecutors to be more careful, and would be more in keeping with the clear intent of the founders to protect individuals from the power of the state.

If these crimes are so terrible, then the prosecution should be doing a good job of prosecuting them.

And, what of the terrible crime for which someone is acquitted? If there have been errors in that case, there's no extra chance to try them - the state gets one chance.

It seems a bit off to me.

parrothead8 7 years, 4 months ago

That's ridiculous. This jerk drank and drove, endangering the lives of everyone around him, then requested a jury trial (as is his right), and you're saying they should just make his "case go away" because it costs money to prosecute him?

Think of the implications. Every single criminal could just start requesting jury trials in hopes their cases would "go away" because prosecuting would cost too much.

Jimo 7 years, 4 months ago

A) Voters have demonstrated again and again they are unwilling to fund unlimited prosecution budgets. Like any other gov't budget, unlimited really is much higher than any reasonable person would initially think (imagine the LJW stories on expensive training sessions in Hawaii and bloated staff counts with people playing video games and taking two hour lunches!). Besides, why take the risk of failing to convict at trial if there's 'a deal' to be had? You do realize that there's no such thing as a guaranteed guilty verdict? You do realize that the DA's position is elected and failure in the courtroom severely undermines public confidence?

B) The implications are minor. The consequence of a criminal conviction (and the reality of a longer sentence attached to a more severe class of conviction) is all that is necessary to make 'a deal' attractive to most cases.

C) Remember that the prosecutor holds considerable power: the prosecutor chooses which crime to charge, chooses (within a statutory limit) when to bring charges (many months, even years) allowing continued investigation and evidence gathering. This is balanced by making the prosecutor prove guilt and disallowing additional 'bites at the apple' should the court find the accused to be innocent. Given the power given to the prosecution there really isn't an excuse for failure to win convictions -- at least cumulatively: this case demonstrates the rare unpredictable exception I noted above that would encourage making 'deals' rather than the prosecution risking trial no matter how confident the DA may be in his evidence.

jafs 7 years, 4 months ago

If your claim about your driving is correct, then your mother and daughter shouldn't be on the road at all.

And, of course, you shouldn't be driving after 4-5 beers either, as your skills will be noticeably impaired.

Taking a bite of food is unlikely to cause impairment on the level of being legally drunk.

Cell phone use - texting - is very likely to cause at least as much impairment.

Jacks_Smirking_Revenge 7 years, 4 months ago

This shouldn't have even gotten as far as it did, as it sounds as if it would be a prime case for using prosecutorial discretion. Oh well, at least the law is more clear on the matter now. Case closed.

Nonsense 7 years, 4 months ago

So, when that .08 crosses the center line and hits you head on you are fine with that. Well, okay.

Jacks_Smirking_Revenge 7 years, 4 months ago

I wouldn't be fine with that any more than I would be fine with anyone crossing the center line and hitting me head on; whether it's a .08, a texting teen, a person reading the paper, eating a meal, listening to the radio, talking to a friend or any myrid of other distractions. All I'm saying is that were I the DA in this case, I would have dropped the DUI and fined for inattentive driving.

I worry much more about the .18's than the .08's.

Al Deathe 7 years, 4 months ago

Thank goodness you are not the DA, how can you ignore the alcohol factor. People need to realize the test is only one part of a case. There is video tape prior to the stop (hopefully), the field sobriety test and the breath alcohol test is the last piece. All that information is given to the judge or jury and a verdict is found. People also need to realize that these trials are not lengthy trials, also they are a very small percentage of the total the majority are put on diversion. The percentage go up when people get their 2nd, 3rd and 4th DUI's. Any time prosecutor and defense can't come to an agreement a trial should result, never should a plea be done out of convenience.

Ron Holzwarth 7 years, 4 months ago

"Finch cannot be re-prosecuted on the DUI charge"

I hope he learned something from the experience! Unless he's dumb as a fence post, he won't try his luck like that again.

The point of the law is to keep drunk drivers off the road, not to fill up the jails.

jafs 7 years, 4 months ago


But it doesn't seem to be doing a very good job of that.

My wife had a great idea - why not simply install interlock ignition devices in all cars? If we want to prevent drunk driving, it might be a better and simpler way to do so.

Ray_Finkle 7 years, 4 months ago

Hey that is a great idea! Lets just take it a step further. Why doesn't the government just put EVERYONE in the country in jail as a way to prevent ALL future crimes! The streets will be crime-free!

jafs 7 years, 4 months ago


Preventing people from driving drunk with an interlock device is equivalent to putting someone in jail for no crime.

How do you figure that?

compmd 7 years, 4 months ago

Because its the government denying you the use of your own personal property even though you've done nothing wrong. It assumes everyone is a criminal, and I'm sorry, that's idiotic.

jafs 7 years, 4 months ago

It doesn't assume anything.

It's a preventive measure, and would be far more effective than any penalties after the fact, which seem to be quite ineffective at preventing drunk driving and the many injuries/property damage/fatalities that result.

And, it only denies you use which would be illegal - if you're not over the legal limit, you are able to use your car.

I understand people may not like the idea, but I'd be glad to have one on my car and go through the slight inconvenience if it meant that far fewer people would be hurt or killed from drunk drivers, and that the roads would be that much safer.

Of course it's easy for me, because I don't drink and drive.

Chelsea Kapfer 7 years, 4 months ago

I would have no problem with one in my car either. if it were free.

jafs 7 years, 4 months ago

What if it cost something, but that cost was mitigated by the lower costs of prosecuting and jailing drunk drivers?

CloveK 7 years, 4 months ago

Simple? How on earth would you fund this? Installing those devices runs up to a grand if not more. Putting those on all the cars in the country could fund the next war.

I do not know how sensitive those things are, but if my mouth wash in the morning caused my car not to start, I would be pretty PO'ed

jafs 7 years, 4 months ago

How much are we spending now as a result of drunk driving? You'd have to subtract that to determine any extra costs of this idea.

Not including, of course, the incalculable losses of life that we could prevent - how much is that worth to you?

They would obviously have to be of a design that worked, and allowed people who just brushed their teeth to use their cars.

CloveK 7 years, 4 months ago

I am not necessarily opposed to this idea, or something along these lines. It is going to take a lot of research and time to implement something like this.

With technology advances, maybe some day we will have "smart" cars that will not engage the engine if the driver is under any influence deemed impairing, without having to blow in some device every time.

We see all the advances with fuel efficiency and carbon reduction, maybe add some of that effort into getting drunks off the road.

I just don't see something like it happening anytime soon.

DillonBarnes 7 years, 4 months ago

Come on, no one else laughed at "The Intoxilyzer 5000"?

jafs 7 years, 4 months ago

That's fine until a drunk driver kills you or someone you love, even though they weren't at fault.

All human activities are a "part of life" - that doesn't really mean much.

kansanbygrace 7 years, 4 months ago

If the number was .08% and the accuracy is, say, plus or minus 1.5% then there is reasonable doubt that the driver was in violation of the law. The stated tolerance of the instrument declares that a reading of .08 is perhaps more or less than the legal limit. For there to not be a reasonable doubt from the very outset, the infraction would have to be in excess of the amount by at least .50 of the tolerance.
There is reasonable doubt in the number. Period. No way to convict based on "maybe a little less than" the legal threshold. To pass the issue to the jury would be a fraud. Evidence inadequate to convict.

Thinking_Out_Loud 7 years, 4 months ago

I just tried to open and read the decision, but it wouldn't open for me. So, with the disclaimer that I have not yet read it....

I don't think the Supremes were making any indication the evidence was adequate or not for conviction. As I read the story, the error was that the court made that decision itself rather than presenting it to a jury. The State presented evidence that met the legal threshold; whether or not it rose to the level of "beyond reasonable doubt" is the purview of the jury, not the court.

Stu Clark 7 years, 4 months ago

Can somebody help with the units here? The measurement quoted was in grams. Grams per what? Most BAC numbers are a per centage.

kansanbygrace 7 years, 4 months ago

grams per kilogram are tenths of a percent. The specific gravity of alcohol and water are not exactly the same, therefore "by weight" or "by volume" are required for the numbers to make sense.

Ron Holzwarth 7 years, 4 months ago

I might have been misled by a person who has had multiple DUIs. I have never had one myself, although I did have to breath into the tube once. I registered 0.0 %, if the machine was accurate. The officer let me go, and I did not ask for the result.

But I was led to believe that a blood test at a hospital was required in order to get a conviction in court. Was I misled, or is that only in cases of accidents or where someone was injured or killed?

Cassie Finch 7 years, 4 months ago

Am I allowed to comment if I know this person? And say whether or not he learned his lesson?

wmathews 7 years, 4 months ago

You can definitely leave a comment as long as it does not violate our Terms of Service:

Just don't post any comments that could be considered libelous or defamatory or that contain offensive language.

Whitney Mathews Assistant Community Editor for Online

Cassie Finch 7 years, 4 months ago

Well, I'm not too found of him so I will keep this one to myself.

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