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Archive for Friday, January 4, 2013

DUI charge filed in accident in which KU student lost his legs; driver had a previous DUI

January 4, 2013, 3:28 p.m. Updated January 4, 2013, 4:58 p.m.

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Branson statement ( .PDF )

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Colby Liston, an eighteen-year-old from Derby and his father Matt Liston talk about Colby's road to recovery after an Aug. 26 accident in which he was pinned between two vehicles cost him to lose both of his legs from above the knee. Enlarge video

A 22-year-old Kansas University student was charged today with driving under the influence for his role in an Aug. 26 traffic accident in which a fellow KU student lost both his legs.

According to a news release issued by Douglas County District Attorney Charles Branson's office, Julian M. Kuszmaul, 22, is charged with DUI, second offense. Kuszmaul also was charged with drug possession and following a vehicle too closely.

Test results showed Kuszmaul's blood-alcohol was 0.25 — three times the legal limit of 0.08 — when his Ford Explorer struck and pinned 18-year-old Colby Liston between Kuszmaul's vehicle and another. The vehicle Liston was standing behind was illegally parked in a driving lane of the 1600 block of Tennessee Street.

An officer responding to the 1:30 a.m. accident “immediately observed a strong odor of an alcoholic beverage emanating from Kuszmaul’s mouth when he spoke,” and “also observed a strong odor of burnt marijuana from Kuszmaul’s clothing and vehicle,” according to a police report. Though Kuszmaul told officers he slammed on the brakes as he approached the other car, police said they found no skid marks.

Following the accident, both of Liston's legs were amputated above the knee.

The blood alcohol test results for the driver of the vehicle that Liston was standing behind — Dustin A. Erickson, 21, Derby — registered at 0.02, below Kansas' legal limit of 0.08.

Police reports noted that Liston had consumed alcohol prior to the accident, but police did not administer a blood test to determine Liston's blood-alcohol level, said Lawrence Police Sgt. Trent McKinley.

According to the news release, Branson's office "received calls and emails regarding why more serious charges were not filed."

Matthew Liston, Colby's father, said he was disappointed an additional battery charge was not added.

"I think that the Douglas County D.A. has let me down and he's let Colby down," he said. "I don't think that justice will be served in this case."

According to the news release, additional charges were not filed because of a Kansas Supreme Court decision that says that "additional evidence, beyond evidence that an accused was driving under the influence of alcohol, is necessary to create a probable cause for reckless aggravated battery charges. Simply driving under the influence of alcohol does not, standing alone, amount to reckless behavior."

"In this case, there is no evidence of additional reckless behavior that would satisfy the Supreme Court's decision," the news release said. "The Douglas County D.A.'s Office disagrees with the Supreme Court's interpretation; however, it is bound to follow it."

Kuszmaul could face up to a year in jail on the misdemeanor DUI charge.

Branson's office, along with other advocates, are working on legislation that would add driving under the influence to current laws on battery charges, the release said.

Comments

Marinabean 1 year, 3 months ago

Ok first of all, this accident happened when EVERYONE was drinking and a car was illegally parked without hazards on at a stoplight, I was in an accident just like that, the driver of the other vehicle is responsible as well! Julian is a very good person and wouldn't have intentionally hurt anyone, Julian doesn't deserve to spend the rest of his life repaying anything, it was an accident that was not all his fault.

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cheeseburger 1 year, 3 months ago

BTW LJW - your archive search function is pathetic. I put in Colby Liston and Julian Kuszmaul in the search window, and neither one brought up this story. I have had numerous other fruitless searches on this site. I think you've known about the problem for quite some time, and I'm curious why it is not yet rectified.

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catfishturkeyhunter 1 year, 3 months ago

Sounds to me like the driver will be rightfully eating bologna and ramen noodles the rest of his life.

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lionheart72661 1 year, 3 months ago

nuby, it is relevant. They were all partying together. Did you not read my whole comment. His friends came back to the store all hysterical and scared. And No just running into the back of someones car is not battery. If it was then EVERY fender bender would result in a battery charge!

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Patricia Davis 1 year, 3 months ago

It appears that the best way to seek punishment for the drunk and stoned driver is in civil court. I hope Mr. Kuaszmaul will spend the rest of his life repaying his debt.

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LJ Whirled 1 year, 3 months ago

Stoners like this guy give drunk driving a bad name.

btw .... @ Colby's Dad ... in the "let me down" department, I'd have to say Colby let you down, and Colby let Colby down. You can argue about degree, but not whether his own reckless behavior, and that of his friends, contributed mightily to this.

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NavyVet 1 year, 3 months ago

How does one observe an odor?

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Michael LoBurgio 1 year, 3 months ago

This should help stop the problem of drunk drivers.

“Group seeks broader liquor sales”

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lionheart72661 1 year, 3 months ago

Just for the record, I was working at a C-Store the night this accident happened. They were all drinking that night and had to go out in the parking lot after they left and clean up all their beer cans. oh about a case of them. Had I known I would have called the cops myself. After the accident several of the girls came back hysterical and I asked what had happened. I asked one girl how old she was. 16 she told me. As for Battery charges! I really don't think so. Looked like some underage drinking was going on and they high tailed it before the law got their. Do i feel sad for what happened to that young man? Of course. It was a mifortunate accident. alcohol + teenagers almost always equals trouble!

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toe 1 year, 3 months ago

We must mark all cars of convicted drunk drivers.

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Bob Forer 1 year, 3 months ago

(continued from directly above)

As the elected district attorney, Charles Branson has a obligation to protect the public. The worst thing that could happen if he filed the felony battery charges would be that the jury might not convict. So what? I could live with that. And I am sure Colby and his family would accept that.

But not even trying? Utterly shameful,. Mr. Branson. Are you worried about losing a case? Its easy to file the “slam dunks,” isn’t it?. But this one might require a little work (yeah,. you would probably have to go to trial on this one), and golly, you might lose the felony battery charge. But I guess your vanity, and avoiding the extra work required of a jury trial, is more important than public safety, eh?

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Bob Forer 1 year, 3 months ago

Branson’s refusal to file felony reckless battery charges is outrageous. Apparently, the Kansas Supreme Court case cited in his press release is State v. Huser, 265 Kan. 228. The passage Branson quotes is taken out of context.

In Huser the driver, while operating his vehicle near the K-State campus, struck two pedestrians who were crossing a street outside of the marked crosswalk with four other friends. The 2 pedestrians that were hit did not see the vehicle until it hit them, and were traversing the street an an angle. Apparently, neither pedestrian was seriously injured. The vehicle stopped within 1-3 feet after hitting the 2, leaving absolutely no skid marks, so apparently, it was traveling at a very low rate of speed. The driver refused to take a preliminary breath test, and no evidence was introduced concerning the driver’s BAC.

Taken out of context, the passage which Branson quotes seems to suggest that a person driving under the influence of alcohol can never be charged with felony reckless aggravated battery. Nothing could be further from the truth. Significantly, Branson fails to quote this passage from the same case:

“One's behavior is only reckless if he or she realizes that his or her conduct creates imminent danger to another person but consciously and unjustifiably disregards the danger. K.S.A. 21-3201(c) (defining reckless conduct). There was no evidence that this occurred here-no evidence of weaving, speeding, or a failure to stop quickly after the accident occurred.”

The driver who maimed Colby for life was not your garden variety intoxicated college kid who had a little too much to drink. My God, his BAC was over three times the legal limit. He was PLASTERED. He was impaired to such an extreme extent that he slammed into the vehicle stopped in the roadway without leaving any skidmarks, which indicates that he never saw the car stopped in front of him.

I would submit that when you operate a motor vehicle at such a high level of intoxication and are impaired to the extent that you cannot even slow down before striking a car stopped on the roadway in front of you where the speed limit is only 30 mph, and visibility in clear, that such behavior is reckless

To file aggravated battery charges, all Branson requires is a reasonable belief that such a crime has been committed. Filing such charges would be entirely ethical and could in no way be construed as prosecutorial misconduct.

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Missingit 1 year, 3 months ago

Anti lock brakes do not mean no skid marks! Anti lock brakes means less skid marks or skip skid (intermittent marks). Work insurance wrecks enough and that's what you see. I bet they were not seen because they might not have been there

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Ron Holzwarth 1 year, 3 months ago

"police said they found no skid marks"

For the first model year, 1991, the Ford Explorer had antilock brakes on only the rear wheels. So, any skid marks, if there were any, would have had to be from the front wheels. Four wheel antilock brakes were standard for the 1993 and up Ford Explorer. So, unless Kuszmaul's Ford Explorer was rather old, 1991 or 1992, no, it will not leave skid marks.

I had a 1991 Ford Explorer 4x4, so I'm more educated than most on its equipment. It stopped really, really fast the only time I ever needed it to. And yes, with a huge squeal, I was made aware that the front wheels were leaving skid marks. Thanks to my intent attention on the road ahead, the Geo Prizm that pulled out directly in front of me didn't get broadsided on the driver's side by a big 4x4 SUV, most likely killing the driver. That would have been horrible. Even though I missed smashing the car by maybe 8 feet, it's still a really bad memory.

People make mistakes, accidents happen in a split second, and the only thing you can do about it is to wear your seat belt and drive as carefully as possible.

But in this case, it was more than just an accident.

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swampyankee 1 year, 3 months ago

Is it legal to stop in a city street to pick up a passenger ?

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sierraclub 1 year, 3 months ago

Wow, an accident happens in August and he is just now charged???? WOW.

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Bob Forer 1 year, 3 months ago

How bout 3 times the legal limit as constituting the reckless element. Worth a try, anyway. This kid apparently didn't learn anything from his first DUI and terribly maimed another human being.

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fan4kufootball 1 year, 3 months ago

The KU student who was the reason for the accident should have to be the "legs" of the person he injured for the rest of his life.

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Eddie_Haskell 1 year, 3 months ago

Just to clarify: 2nd offense DUI is a misdemeanor, not a felony.

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cheeseburger 1 year, 3 months ago

Well by golly he ought to have to spend the year in jail. Let's hope the judge doesn't choose the minimum sentence once again.

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