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Archive for Tuesday, October 22, 2013

Prosecution appeals judge’s dismissal of blood test in case of accident that cost KU student his legs

October 22, 2013

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State prosecutors have appealed a Douglas County judge’s dismissal of the results of a blood test in the case of a Kansas University student arrested last year after a accident that cost a fellow student his legs.

Earlier this month, Douglas County District Judge Kay Huff granted Julian M. Kuszmaul’s motion to suppress the results of a blood test administered on Aug. 26, 2012, shortly after Kuszmaul’s Ford Explorer pinned Colby Liston between the vehicle and an illegally parked vehicle in the 1600 block of Tennessee Street. Following the accident, both of Liston’s legs were amputated above the knee.

According to court documents, Kuszmaul had indicated that he would not consent to a blood test but that he would cooperate with Lawrence Memorial Hospital staff. A Lawrence police officer took Kuszmaul to the hospital for the test, which would be administered without a warrant but under the pretense of the state’s implied consent statute. In its case against Kuszmaul, the state argued that the statute allowed law enforcement officers to request drug or alcohol tests if a person was operating a vehicle in an accident that resulted in serious injury or death and if the operator of the vehicle could be cited for a traffic offense.

In granting a motion by Kuszmaul’s attorney, Thomas Bath Jr., to suppress the test results — which found Kuszmaul’s blood-alcohol level to be 0.25, or three times the state’s legal limit of 0.08 — Huff ruled that the statute doesn’t establish clearly defined authorization of warrantless blood draws and that meeting the statute does not necessarily satisfy the Fourth Amendment's prohibition against unreasonable searches and seizures.

Kuszmaul was scheduled to appear in court on Tuesday for a trial setting, but the hearing was canceled after the state filed its appeal. He remains free on a $1,500 bond and faces charges of second-offense DUI, drug possession, following too closely and refusing a test for drugs or alcohol. Earlier this month, Huff refused to grant the defense’s motion to dismiss charges of refusing a test for drugs or alcohol, which was added in July.

Because Kuszmual has a prior DUI conviction, the charge of refusing the test after the August accident could carry a penalty of 90 days to one year in jail, if he is convicted. The law would require him to spend at least five days in jail even if probation is granted. The misdemeanor DUI charge also carries a sentence of up to one year in jail.

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