2018 Johnson County Bench-Bar DUI Update!

Transcription

1 2018 Johnson County Bench-Bar DUI Update! Paul W. Burmaster Attorney & Counselor 8000 Foster St. Overland Park, KS (913)

2 1. Truly Useful Stuff Suspension Charts Etc: KDHE Training Manuals: (How Kansas Runs the Breath Machine) Traffic Resource Officer: - what the prosecutor is referencing Electric Bicycle - Hey you can still get around! b - No DL Required Defined - Electric-assisted bicycle" Alcohol Action Chart: Speeding Ticket Buffer Chart: Ticket Cheat Sheet: 2. Recent Popular Motions a. K.S.A and the Implied Consent Advisory (DC70) - K.S.A (k) provides implied consent advisories - Statute still says to advise regarding criminal refusal - Criminal Refusal Statute found Unconstitutional in Ryce - But, statute says "shall" give these advisories - Conflict between statute and DC70 crafted after Ryce - Advisory does not "substantially comply"

3 b. NHTSA Approved Intox Devices - Intox 9000 not listed - KDHE regs for (EBAT) devices listed in K.A.R et. seq. - K.A.R (b) designates which devices are approved - Chosen by NHTSA and published in 71 fed. reg (2006) - Intox 9000 not on that list - therefore test results must be suppressed - See State v. Pollman, 41 Kan.App.2d 20 (2008) c. PBT Refusal Unconstitutional - State v. Edgar made clear that one can always withdraw consent - Statutory PBT advisories have 3 warnings - One warning advises it is an infraction and a fine to refuse - Unconstitutional to criminalize refusal per Ryce - State v. Robinson, 2017WL K.S.A Unconstitutional - PBT Refusals being dismissed, LEOs dropping warnings. 3. Potential Problems with Proposed Legislation a. Out-of-State Convictions b. Criminalizing Driving with Any Measurable Amount of Drugs c. Implied Consent Advisories d. Criminalizing Refusal of the Breath Test

4 4. Six Things The DUI Lawyer Should Still Know #1 State v. Fish, 228 Kan. 204 (1980) - Operate Means Drive But, See State v. Kendall, 274 Kan (2002) - Circumst. Evid Car In Neutral And State v. Ahrens, 296 Kan. 151 (2012) - Driving While Simult. Under Influence #2 City of Wichita v. Molitor, 301 Kan. 251 (2015) - HGN Still Worthless - Reas. Suspicion Required for PBT - NEW test for Reas. Suspic. - Refined Thinking - Balancing Test - Defendant need not Dispel or Negate Off. suspicions #3 Sloop v. KDOR, 296 Kan. 13 (2012) - Probable Cause is Robust again - Bruch Language : More than Mere Possibility Disapproved #4 State v. Shadden, 290 Kan. 803 (2010) - Can't Use FSTs to Predict BAC - Can't Mention Percentages? (see Molitor) #5 Over.02 is NOT DUI, even if you are under 21 - Please read a there is no criminal sanction #6 BUI counts as a DUI for Criminal History Purposes - Please read (i)(2)(c) - And, sadly, a BUI can occur in almost any water in almost any vessel

5 5. Recent Criminal DUI Caselaw State v. Claerhout, 54 Kan.App.2d 742 (2017) - DUI Murder and A defendant's prior record for reckless or intoxicated driving is relevant in a depraved heart second-degree murder case to establish that defendant had grounds to be aware of the risk his drinking and driving while intoxicated presented to others. Voluntary intoxication is a defense to specific intent crimes, but is not a defense to general intent crimes. State v. Lamone, 54 Kan.App.2d 180 (2017). Bicycle DUI Can't Count. Wichita municipal code treated riding a bicycle on a roadway while drunk as a DUI conduct not criminalized in K.S.A Applying Apprendi and Dickey, sentence vacated and case remanded for resentencing without counting bicycle DUI conviction. There are a bunch of these cases that are unpublished. State v. Castillo, 54 Kan.App.2d 217 (2017) - District Court Retains Jurisdiction. Inmates on post-release supervision remain in legal custody of Secretary of Corrections and subject to orders of the Secretary. But, DUI offenders are on postimprisonment supervision and they remain subject to the jurisdiction of the district court. When a DUI offender violates the conditions of post-imprisonment supervision, a district court has the discretion to revoke that supervision and to impose additional jail time. State v. Chavez, II, 2017 WL Speedy Trial and Lesser Included Analyzed. Court found State had willfully and intentionally withheld Giglio information about the investigating police officer. Speedy trial and lesser included of Involuntary Manslaughter analyzed. State v. Carpentier, 2017WL DUI and Consec Rules. When a district court imposes multiple non-guideline sentences, it has discretion to run the sentences concurrently or consecutively. State v. McClellan, 2017WL Stanley Covers Nebraska DUIs. Nebraska DUI statute criminalized a broader range of action than the Kansas DUI statute and could not be counted as part of criminal history per Stanley. State v. Mall, 2018WL Evidence and DUI. Prior Colorado DUI admissible in manslaughter DUI as information and classified as a person felony for purposes of sentencing. State v. Ryce, 306 Kan. 682 (2017). Refusal Statute Still Unconstitutional. Supreme Court considers Birchfield and conforms to its holding in Ryce I, which affirmed the district court's decision to dismiss the criminal charge against Ryce that criminalized his refusal to submit to a chemical test for alcohol. State v. Martindale, 2017WL District Court Can Revoke Post- Imprisonment. Felony DUI is one of the felonies listed in K.S.A (i). K.S.A. 8

6 1567 does not provide the mechanism by which post-imprisonment supervision may be revoked, thus, it is not otherwise provided. Therefore, K.S.A authorizes the district court to revoke post-imprisonment supervision for those, like Martindale, who are convicted of felony DUI. District court had jurisdiction to revoke her post-imprisonment supervision. City of Topeka v. Lauck, 2017WL Applying Daubert to Experts. Defense expert found unqualified under Daubert standard. State v. Breault, 2017WL Electric Bike Not a Vehicle. Conviction vacated because Defendant driving an electric bicycle and not a motor vehicle. State v. Martinez, 2017WL Illegal Detention Analyzed. While he may have noted an odor of alcohol, bloodshot and watery eyes, and slightly slurred speech upon contact with Martinez, anything Officer Lahann observed after ordering Martinez to return to his car cannot be used to justify the initial detention. The officer lacked reasonable suspicion Martinez was operating his car under the influence of alcohol at the time he was ordered to get back in his car and, thus, was detained. State v. Meitler, 2017WL Accident Not Enough for Blood. Trooper acknowledged that the only reason he requested a blood sample from Meitler was because he had been involved in a fatality accident. Judgment of acquittal affirmed. State v. Smith, 2018WL Don't Plea Then Appeal. Smith failed to preserve his constitutional challenge to K.S.A by submitting his cases to the district court for a bench trial on stipulated facts. Instead, he pled guilty to the test refusal charges, and he never attempted to withdraw the guilty pleas in district court. Therefore, Smith is jurisdictionally barred from appealing his convictions. State v. Nece, 306 Kan. 679 (2017). Can't Coerce Breath Test. In light of State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016), this day decided (Ryce II), which holds that K.S.A is unconstitutional, the informed consent advisory in K.S.A (k) inaccurately advises a driving under the influence suspect that he or she might be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties equal to or greater than those for the crime of driving under the influence. Given that inaccuracy, a district court could appropriately hold the suspect's consent to breath-alcohol testing was not freely and voluntarily given under the totality of the circumstances of a given case. State v. Smith, 2017WL Error to Express Opinion of Witness. State concedes that prosecutorial error prejudiced Smith's right to a fair trial, we reverse and remand for a new trial. Prosecutor repeatedly expressed personal opinion as to credibility of the witnesses.

7 State v. Cross, 2017WL State Can't Ignore Absconders. Cross didn't show up for her trial in McPherson County District Court in The district court issued a bench warrant for Cross' arrest. Then nothing happened literally for more than 10 years. Applying the multifaceted considerations bearing on Cross' speedy trial rights, the appeal court affirmed dismissal. State v. Brown, 2017WL Read Jury Verdict Carefully. Courts have to treat completed jury verdict forms in a criminal case as saying what they mean and meaning what they say. According to the verdict form, the jurors convicted Aaron Robert Brown of attempted involuntary manslaughter, even though they had not been instructed on such a crime. Nobody noticed the discrepancy when the verdict was announced and the jurors were polled at the end of the trial. At sentencing, the district court presumed to correct the verdict to one for attempted voluntary manslaughter and punished Brown for that crime. But, courts cannot take it upon themselves to unilaterally fix ostensibly errant verdicts. Remand for a new trial on attempted voluntary manslaughter. State v. Sharp, 305 Kan (2017) - Speculative Stop Not OK. Police officer lacked reasonable suspicion that defendant was going to violate exhibition of speed statute, as justification for traffic stop. State v. Robinson, 2017WL PBT Refusal Statute Unconstitutional. Statute criminalizing a driver's refusal to submit to a preliminary breath test was unconstitutional under the Fourth Amendment, Ryce, and in violation of due process. 6. Recent Administrative DUI Caselaw Wall v. KDOR, 2017WL Improper DC27 Voids Jurisdiction. The arresting officer completed a DC 27 form indicating Wall failed an evidentiary breath test. However, the accompanying test results showed no breath sample was given. The officer also did not mark Paragraphs 9 11 of the DC 27 form, which are required to be certified when there is a test failure. Accordingly, KDOR never had jurisdiction to proceed with the administrative hearing as the certification and notice of suspension (DC 27) form was incorrectly prepared. Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. Wright v. KDOR, 2017WL Officer Shielded by Good Faith. Wright presents one issue whether the implied consent advisories given to him by Trooper Walker were an incorrect statement of his constitutional rights. Under the KJRA, the standard of review varies depending upon the issue raised. Under K.S.A (c), we may only grant relief if one or more of the enumerated circumstances are present. Multiple panels of our court have also held that the exclusionary rule does not apply in administrative appeals. In this case, it is undisputed that Wright was arrested prior to the release of the Ryce and Nece decisions by the Kansas Supreme Court. Thus, we would

8 not expect a reasonable law enforcement officer to predict the answer to this difficult constitutional question. Affirmed. Neiman v. KDOR, 2017WL Off Won't Get Defendant Off. During the deprivation period prior to the test, the trooper let Neiman apply bug repellant to her body. Toward the end of the deprivation period, some of her hair got into her mouth and she touched her finger to her mouth to remove the hair. Neiman offers speculation and no real proof of any breach of the testing protocol. Creecy v. KDOR, 2017WL Everyone Knows PBT Doesn't Count. Creecy contends the standard DC-70 form Rollf used to inform him of his rights associated with testing of his BAC failed to substantially conform to K.S.A because the form refers to an evidentiary test and that term doesn't sufficiently distinguish between a preliminary breath test and a post-arrest breath test. We might invoke the axiom that everyone is presumed to know the law. See State v. Cook, 286 Kan. 766, 775, 187 P.3d 1283 (2008). Buoyed by that admittedly fictive presumption, we can say that a person would recognize the term evidentiary test to mean a post-arrest bloodalcohol test rather than a preliminary breath test. Chambers v. KDOR, 2017WL May Refuse Field Tests. Truck's tag light out, but pulled over properly without exhibiting any cues of impairment. Strong odor, admission of "a couple. Bloodshot and watery eyes. Not argumentative, speech not slurred, and no unusual statements. No trouble opening his door, no balance or coordination issues, and able to walk without swaying. Declined all standard field sobriety tests (SFST). Held: Officer lacked reasonable grounds to ask for a breath test. Platt v. KDOR, 2017WL Must Specifically Ask for Lawyer. Because Platt's answer to the officer, I don't know, was equivocal, we hold Platt never invoked his right to counsel. Therefore, we reverse the court's order suppressing the breath test results and reverse the order lifting the suspension of Platt's driving privileges. Gomez v. KDOR, 2018WL Burdens of Proof Analysis. Thorough discussion of burdens of proof at various stages of DL Hearing from admin to appellate court. Vega-Gamboa v. KDOR, 2017WL PBT Must Be Approved. PBT used was neither preapproved by being on the list in the regulation nor approved by separate submission to the Department of Health and Environment. The district court erred, therefore, in admitting the result of the PBT. Readdy v. KDOR, 2017WL Always Watch the Video. Trooper explained that the DC 27 form does not contain any provision specifying any period within which the alcohol must be previously consumed. So if somebody tells me... I had something to drink two days ago, that's still an admission.

9 Fischer v. KDOR, 2017WL Under 21, Fewer Protections. Police officer had probable cause to believe that driver, who was under the age of 21, was operating vehicle with breath alcohol content in excess of.02, such that officer had reasonable grounds to request that driver submit to preliminary breath test (PBT), and even if PBT statute violated driver's Fourth Amendment rights by allowing driver to be criminally prosecuted for withdrawing his consent for PBT, any constitutional violation to driver was harmless.