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FAQ FREQUENTLY ASKED QUESTIONS REGARDING DUIThe following FAQ section is a modified version of that provided by Mr. Lawrence Taylor on his web site and based on information contained in his authoritative treatise Drunk Driving Defense. Mr. Taylor may be reached through his website at: www.DUIcenter.com 1. What do police officers look for when searching for drunk drivers on the highways? 2. Can I be stopped by an officer if I have not committed any traffic infractions? 3. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say? 4. Do I have a right to an attorney when I'm stopped by an officer? 5. What clues are the officer looking for during my traffic stop? 7. Should I agree to take a Preliminary Breath Test? 8. Should I agree to take a breath, blood or urine chemical test? What happens if I don't? 9. Do I have a choice of chemical tests? which should I choose? 12. Can I represent myself? What can a lawyer do for me? 13. What is the punishment for drunk driving in Kansas? 15. I've been arrested for DUI, what should I do now?
1. What do police officers look for when searching for drunk drivers on the highways? The following list is based upon research conducted by the National Highway Traffic Safety Administration and is usually taught at police academies:
Speeding is not necessarily a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety. 2. Can I be stopped by an officer if I have not committed any traffic infractions? Yes. The officer must have a "reasonable articulable suspicion" to pull a car over or to initiate a traffic stop, but that unfortunately does not require observing a traffic violation. The Kansas Supreme Court approved an officer’s traffic stop based on the driver weaving within his own lane of traffic.
3. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say? If the officer is asking you about drinking, chances are you are being investigated for DUI. Admission of drinking will almost always result in further testing. Unless you know you are not under the influence, declining to answer would be appropriate. 4. Do I have a right to an attorney when I'm stopped by an officer? No. In the State of Kansas there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. Of course, this does not mean that you cannot ask for one. Once testing has been completed, you have a right to consult with an attorney and also may request an independent test for alcohol. 5. What clues are the officer looking for during my traffic stop? The following is a non-exclusive list of things police generally look for:
Tell the officer "no". You are not required to do them (almost no one can pass them anyway). Unlike refusing to take the Intoxilyzer 5000 breath test, urine test or a blood test (which may result in the suspension of your driving privileges), or the Preliminary Breath Test (PBT) (which may result in a fine), there is no penalty for not taking Field Sobriety Tests. All you are doing by taking the Field Sobriety Tests is giving the officer additional evidence against you. 7. Should I agree to take a Preliminary Breath Test? Preliminary Breath Test devices are usually small, hand held, breath testing units carried by officer’s to field test for DUI. Preliminary Breath Test results are not admissible in court, except to show probable cause. Failure to take a Preliminary Breath Test does not carry a license suspension but usually results in a fine. By agreeing to take the test you are helping the officer to build a case against you. But only you can decide whether to refuse or to take the Preliminary Breath Test, based on weighing the fine and court costs against the evidence you are giving to the officer. 8. Should I agree to take a breath, blood or urine chemical test? What happens if I don't? The consequences of refusing to submit to a blood, breath or urine test has severe consequences in the State of Kansas: (1) Your driver's license may be suspended for one year for a first offense; two years for a second offense within five years; three years for a third offense within five years; ten years for a fourth offense within five years; and lifetime revocation for a fifth offense within five years. This is true even if you are found not guilty of the DUI charge. (2) The fact of refusal can be introduced into evidence as "consciousness of guilt". Of course, your defense counsel is free to offer other reasons for the refusal. Thus, the decision is one of weighing the likelihood of a high breath, blood or urine alcohol reading against the consequences for refusing. 9. Do I have a choice of chemical tests? which should I choose? The officer will ask you submit to a chemical test of Breath, Blood or Urine. In Kansas you do not have a choice in what chemical test you will take. If the officer requests that you take a breath test and you consent to taking a blood test, that will be deemed a refusal and your license may be suspended. Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems sometimes rendering them unreliable. The least accurate, however, is urinalysis. Thus, if you are confident that you are sober, a blood sample is the wise choice; urine, being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit of .08. No. The officer should give a 5th Amendment or Miranda warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after your detention. Of more consequence in most cases is the failure to advise you of the state's "implied consent" law that is, your legal obligation to take a chemical test of breath, blood or urine and the consequences if you refuse. This can affect the suspension of your license. Agreed, it is blatantly unfair. But the law in Kansas, where the defined legal limit of being under the influence is .08, provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit of .08. Once you are served with the Notice, you have 10 calendar days to request a hearing on whether your license will suspended and/or restricted. Failure to request the hearing within 10 calendar days means you forfeit your right to have a hearing and the Division of Motor Vehicles will take whatever action they feel appropriate. 12. Can I represent myself? What can a lawyer do for me? You can represent yourself -- although it is not generally considered a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative issues. What can a lawyer do? Nothing (or worse) if he or she does not spend a significant portion of his or her practice in this complicated field. However, an experienced attorney can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood or chemical samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc. 13. What is the punishment for drunk driving in Kansas? The range of punishment for each offense is set forth below:
A diversion is sometimes offered to first time offenders by the prosecution. A diversion is a contract between the defendant and the prosecution (the court has nothing to do with it). Like any other contract, each side is going to perform their contractual obligations to the other. General diversion terms include performing community service, pay diversion fees, court costs, alcohol evaluation costs, attending Alcohol Information School, and staying out of trouble for the diversion term (usually between 6 months to 1 year). At the end of the diversion term, if the defendant has performed all of his/her obligations, the prosecution dismisses the charge or charges that were diverted. This is the up side. The down side is the diversion goes on your driving record, as a diversion and not a conviction, and stays there for a period forever. If you are EVER charged again with DUI, it will be charged as a second offense, even though the diversion resulted in the first offense being dismissed by the prosecution.
A diversion is sometimes offered to first time offenders by the prosecution. A diversion is a contract between the defendant and the prosecution (the court has nothing to do with it). Like any other contract, each side is going to perform their contractual obligations to the other. General diversion terms include performing community service, pay diversion fees, court costs, alcohol evaluation costs, attending Alcohol Information School, and staying out of trouble for the diversion term (usually between 6 months to 1 year). At the end of the diversion term, if the defendant has performed all of his/her obligations, the prosecution dismisses the charge or charges that were diverted. This is the up side. The down side is the diversion goes on your driving record, as a diversion and not a conviction, and stays there for a period forever. If you are EVER charged again with DUI, it will be charged as a second offense, even though the diversion resulted in the first offense being dismissed by the prosecution. 15. I've been arrested for DUI, what should I do now? 1. Get out of jail. Call a bondsman, post bond yourself or have a friend or family member post bond. 2. Call a lawyer. There are deadlines to take certain steps to protect your license, etc. Some of these deadlines are as short as 10 calendar days.
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If, after reading this, you have questions, please do not hesitate to make an appointment to discuss your case. Call us at (795)537-4603 direct. |
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