Julian Kuszmaul

Julian M. Kuszmaul, of Lawrence, was found guilty Thursday of second-offense DUI, refusing to submit to alcohol or drug testing and possession of marijuana in connection with an August 2012 accident that cost a Kansas University student his legs.

Douglas County District Judge Kay Huff, after a bench trial, acquitted Kuszmaul of his fourth charge of following another vehicle too closely.

A Ford Explorer Kuszmaul was driving during the early-morning hours of Aug. 26, 2012, struck and pinned 18-year-old Colby Liston, now 20, 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, according to court testimony.

After the accident, Liston’s legs had to be amputated above the knee.

Blood test results, which Huff ordered suppressed in 2013 because the blood draw was taken without Kuszmaul’s consent, showed Kuszmaul had a blood-alcohol content of 0.25 — three times the legal limit of 0.08 — when he struck Liston.

Even without the test results, Huff said she could find Kuszmaul guilty because of testimony during the trial last week in which two Lawrence police officers, Brett Horner and Ronald Ivener, said Kuszmaul “smelled strongly” of marijuana and alcohol after the incident.

“A chemical test is not necessary,” Huff said. “Guilt may be established by circumstantial evidence.”

Additionally, Huff said that Kuszmaul’s refusal to submit to alcohol or drug testing was indicative of guilt.

“Statute provides that a person’s refusal to submit to a test may be admissible in a DUI case,” Huff said. “I find that his refusal shows consciousness of guilt.”

Huff said she found Kuszmaul guilty of refusing to submit to an alcohol or drug test because neither the defense nor prosecution disputed the claim.

She said she found Kuszmaul guilty of possession of marijuana because of Horner’s trial testimony that a little over a gram and a half of marijuana was discovered in a plastic baggie inside a bookbag in the vehicle that also contained Kuszmaul’s checkbook.

Kuszmaul’s attorney, Thomas Bath Jr., had argued at the bench trial that Kuszmaul could not be convicted of misdemeanor possession of marijuana based on the location of the marijuana.

“The only thing that’s identifiable to Mr. Kuszmaul is the checkbook,” Bath said. “It was not Mr. Kuszmaul’s car.” The car belonged to his girlfriend.

However, Huff also took into consideration Horner’s testimony that Kuszmaul had bloodshot eyes and smelled of marijuana, which he said are signs of marijuana intoxication.

Each of Kuszmaul’s convictions are misdemeanors. Because Kuszmual has a prior conviction for DUI, the charge of refusing a test for drugs or alcohol after the August accident could carry a penalty of 90 days to one year in jail. 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.

The case was tried by a judge because Kuszmaul waived his right to a jury trial.

Sentencing is scheduled for Jan. 22.