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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

Eddie_Haskell 1 year, 10 months ago

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

fan4kufootball 1 year, 10 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.

Bob Forer 1 year, 10 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.

mdfraz 1 year, 10 months ago

Fundamental lack of understanding. Blood test results take a long time to come back from the lab. It's standard practice to wait and get it right, rather than rush into charges because they can't file for DUI (or at least they don't have all of the potential supporting evidence) without the blood test results. And if they file other charges and NOT DUI, the defendant can potentially plead to the lesser charges and avoid the DUI altogether.

But I'm sure you and many others on here know the law better than the police and prosecutors......

Eugehne Normandin 1 year, 10 months ago

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

Ron Holzwarth 1 year, 10 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.

Food_for_Thought 1 year, 10 months ago

Just so you're aware, just because a vehicle has anti-lock brakes, and just because a vehicle's tire's don't "lock up" as they would in a non-ABS vehicle, doesn't mean that residual tire marks are not left behind when someone slams on the brakes. Hard braking still generates enough friction between the roadway surface and tire surface to cause wear/transfer of rubber to the pavement. ABS simply prevents a vehicle's tires from locking up completely and going into a full skid.

Ron Holzwarth 1 year, 10 months ago

Actually, I think you're right - I have heard a faint chirping sound on my present vehicle at a very slow speed, when someone couldn't see me coming and backed out of a parking space in front of me.

From: http://www.crashforum.info/viewtopic.php?f=26&t=164

"In heavy, ABS-assisted braking, an ABS equipped vehicle will leave faint, short lived marks on the pavement which - depending on the type of pavement among other things - might be relatively harder to see on some roads.

At the end of the day, ABS equipped vehicles do leave "tire marks" during heavy braking but they don't have the same appearance characteristics as marks left by non-ABS equipped vehicles."

Ron Holzwarth 1 year, 10 months ago

Why would I send that story off to 'Reader's Digest'? That's a very common event, it happens every day.

If I were to have a story in 'Reader's Digest', it would be the one that involved me that was picked up by the Associated Press and distributed nationwide on television, radio, and newspapers. But, due to another party's privacy concerns, I don't believe I'll have any more comments, as least as long as living persons are involved, as I made clear to the reporter that wrote the original AP article.

Ron Holzwarth 1 year, 10 months ago

Actually, it would be much more likely to be a book, as the story is far too long to fit into the very short 'Reader's Digest' format. A friend has mentioned writing it, but I'm not so sure that's a good idea, again, due to the privacy concerns of another individual.

Missingit 1 year, 10 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

Bob Forer 1 year, 10 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.

jafs 1 year, 10 months ago

Amen.

I might say that DUI is inherently reckless as well, given what we know about it.

Bob Forer 1 year, 10 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?

kuguardgrl13 1 year, 10 months ago

Some states have what they call "whiskey plates" for DUI/DWI offenders. I'm not sure if they apply to a first offense, but they almost certainly would in a second offense, especially if someone is injured or killed. Whiskey plates were one of the things they warned us about in driver's ed in Minnesota.

lionheart72661 1 year, 10 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!

nuby 1 year, 10 months ago

Lion- all of that information is really irrelevant. The driver of Colby's vehicle was not intoxicated. Had the driver of the other vehicle been sober he would not have run into Colby. Period.

tanaumaga 1 year, 10 months ago

Had the driver of Colby's vehicle not stopped in the street, he would not have run into Colby either . Period. I'm not excusing the other drivers behavior or bad judgement by any means, but everybody in the situation contributed to the accident. Period.

Tomato 1 year, 10 months ago

You're really supposed to drive in a way that anticipates you may encounter stopped cars in the street. They may be stopped due to an emergency, due to mechanical problems, due to a stop sign, due to an impediment, or due to a variety of reasons for which it's legal and expected that you stop your car.

There is a reasonable expectation that you will encounter a stopped car at some point on a city street.

The presence of obstacles on the road is exactly why you're not supposed to drive at a speed that will cause you to outrun your headlights.

It would be nice if every time I got into my car, everyone and everything got out of my way like magic - but that's not reality. Reality is that the law says that I must drive in a way that anticipates potential problems.

jafs 1 year, 10 months ago

Bashing into somebody with your car sounds like battery to me.

Michael LoBurgio 1 year, 10 months ago

This should help stop the problem of drunk drivers.

“Group seeks broader liquor sales”

racerx 1 year, 10 months ago

ob·serve /əbˈzərv/ Verb: Notice or perceive (something) and register it as being significant.

Patricia Davis 1 year, 10 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.

lionheart72661 1 year, 10 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!

jafs 1 year, 10 months ago

He didn't just run into somebody's car, he ran into a person.

That's battery.

The guy lost his legs as a result.

Did you read the article?

Jeremiah Jefferson 1 year, 10 months ago

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

Marinabean 1 year, 10 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.

jafs 1 year, 10 months ago

The comparison of the blood alcohol levels shows that Julian was extremely drunk, while the driver of the other car wasn't.

He was 3x the limit, while the other driver was under the limit.

That means that despite his "niceness", he was much more negligent than the other guy.

I agree that the fellow who parked his car illegally without hazard lights on bears some responsibility, but I think that Julian bears the much larger share.

Driving while 3x the legal limit is reckless endangerment in my view.

Tomato 1 year, 10 months ago

If you fail to predict that a car may be present at a stop light, then you deserve to have your license revoked.

It doesn't really matter why the car was at the stoplight, or whether it had lights on - it's a stop light.

Do you think pedestrians have hazard lights? Fallen branches? Animals? It is your LEGAL responsibility as a driver to drive in a safe manner, with the reasonable anticipation that you may encounter obstacles in the road.

If you hit a stopped car in the street, then you were driving dangerously - usually too fast, too drunk or too distracted to react in time.

Until you can accept that, please do not drive. You are a danger to yourself and others.

jafs 1 year, 10 months ago

Except that parking illegally is a certain amount of contributory negligence, in my understanding.

He was parked in a lane where parking is illegal, not in a legal parking space.

At the very least, he should have had his hazard lights on - it could have prevented this horrible tragedy.

I agree that the drunk driver had more responsibility and bears more blame, but don't agree that the other driver is completely blameless in the situation.

Tomato 1 year, 10 months ago

It doesn't matter. Look at it this way: if you are driving safely, you will see a stationary object as large as a car, no matter what time of night or what the lighting is like, whether or not the vehicle had hazard lights.

Your headlights will illuminate it and you will have time to stop.

The drunk driver bears the ENTIRE responsibility because he was not driving in a manner that was consistent with the law. In order for it to be otherwise, you would have to be able to conclusively state that stopping one's car in the road contributed to the accident.

You can't say that, because if the drunk driver were driving in a manner consistent with the law, he would have seen a large obstacle such as a car when it became illuminated by his headlights and he would have been able to stop.

Ultimately, it makes no difference whether the car was broken down, whether it stopped at a stop sign, whether it stopped due to an emergency, whether it stopped because of an obstruction in the road or whether it was stopped illegally to pick up a passenger. When you collide with a stopped vehicle in the road while driving dangerously, you are 100%, fully at fault. No matter what excuses you want to make for yourself or others.

There is nothing innately dangerous about stopping your car in a roadway. Drivers can reasonably expect to encounter stopped cars in the roadway. They are supposed to anticipate that. There is something innately dangerous about driving drunk, outrunning your headlights, being distracted, or speeding.

jafs 1 year, 10 months ago

Well, I don't agree.

As I said, parking illegally is also not operating your vehicle in according with the law, and is a contributing factor to the accident, without which it may not have occurred at all.

Many situations like these aren't black and white, and people seem to find that difficult.

You say if the drunk driver weren't drunk, it wouldn't have happened, and that's true. But it's also true that if the car hadn't been parked there, it wouldn't have happened, or if it had hazard lights on, it might not have happened.

Why are you so intent on only blaming the drunk driver, who I already said bears the lion's share of blame here?

If you look up contributory negligence, you'll find the example of a pedestrian crossing the street negligently (ie. against the light, in the middle of the street, etc.) who gets hit by a car operating negligently. Both are at fault to some degree there - in your version, only the car driver is at fault. Modern legal practice tries to assign percentages of responsibility, although some states allow even 1% of negligence on one side as a defense to lawsuits, which seems unfair to me, if it means that the 99% responsible party is off the hook.

jafs 1 year, 10 months ago

Having read a little, perhaps the more precise term would be "comparative negligence".

MISTERTibbs 1 year, 10 months ago

Yeah, that "good person" was willing to place himself and everyone in his vehicle at risk by driving while 3x over the limit.

He was also willing to put at risk anyone and everyone encountered along the way at risk. Unfortunately for Colby he happened to be in that "good person's" path.

That "good person" was also willing to drop "friend" off on "friend's" front yard after an overdose, and then refuse to provide information about what he and the kid had ingested. I know the family and understand that the kid survived without any long term complications, but this is what kind of "very good person" Julian is. The kind who only thinks about himself.

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