Archive for February, 2011

Not the Stereotypical Kansas Drunk Driver: DUI Risks from Legal Drug Use

Wednesday, February 23rd, 2011

The phrase “drunk driver” tends to elicit certain stereotypes like a person stumbling out of a bar at closing time and fumbling to find his car keys or a teenager smoking marijuana before climbing behind the wheel of his car. However, a middle aged soccer mom driving to the grocery store or young professional on his way to the office who is taking medications prescribed by one’s doctor can also find themselves facing an arrest for driving under the influence (DUI) in Kansas.

Kansas considers any drug, including prescription drugs and over the counter drugs, that causes one to fail a sobriety field test to be the basis for a DUI arrest. Kansas state laws permit a DUI arrest for driving under the influence of either alcohol or drugs. Many people who never drink alcohol or take illegal drugs do take prescription and over-the-counter medications. The definition of a drug, which can form the basis for DUI is very broad in most states, and typically includes any substance that can affect a person’s mental or physical driving abilities. It is even possible to be convicted of driving under the influence of drugs where the drug is of the over-the-counter variety, such as cold medicine, or even coffee or caffeine pills, if the drug adversely affects one’s driving ability. Common legal drugs that can negatively impact one’s driving and lead to an arrest for DUI include tranquilizers, sedatives, asthma or allergy medications, diet pills, energy supplements and sleep aids.

DUI cases in Kansas involving prescription and over-the-counter drugs can be more difficult for a prosecutor to prove. One reason for this is that a properly conducted prosecution requires that the prosecutor incur more cost to prosecute a DUI drug case than a generic DUI criminal case. Presuming that you do not disclose the specific drugs you have taken, the prosecutor typically will need to test your blood or urine sample for multiple substances. With each particular category of drug that is tested, the cost of the chemical testing increases. The prosecutor also will typically need to present testimony from a medical expert as to the effects of a particular drug at levels detected in your blood on your ability to operate a motor vehicle.

The worst thing that you can do if you are stopped for suspicion of DUI in Kansas and have taken prescription or over-the-counter medication that may cause you to be drowsy or affect your ability to drive is to admit this information to the police officer. If you disclose the drugs that may be in your system, you make it easier to conduct blood tests that will detect the particular substance and may provide the officer sufficient legal basis to conduct field sobriety tests, which typically play an important role in DUI cases involving prescription or over-the-counter medications. If the officer asks you to participate in a Breathalyzer test after conducting field sobriety testing, however, you should be aware that some drugs might cause a false positive result.

Unlike DUI charges based on alcohol, there is no specific amount of a drug in one’s blood that constitutes a legal presumption of being under the influence. This is both good news and bad news. Because there is no per se violation involving a presumption of impairment when you have a certain amount of a drug in your system, this often means there is no separate administrative suspension of your driver’s license. This also means that the prosecutor must rely on observations of a driver including the following:

• Erratic driving

• Smell of alcohol

• Red watery eyes

• Lack of balance or stumbling

• Slurred speech

All of these observations by the officer combined with field sobriety results as well as chemical testing results will typically be used to establish that a driver is under the influence of drugs. Fortunately, there are many plausible reasons for these physical symptoms that have nothing to do with alcohol consumption including allergies, contact lenses, fatigue, physical injuries or disabilities just to name a few. An experienced DUI defense lawyer also will have a great deal of experience in challenging field sobriety tests that are often conducted or scored improperly.

The bad news is that ANY amount of a drug in your system can form the basis of a DUI if it can be established that it impaired your driving. Prosecutors will typically use an expert witness to testify concerning how a certain amount of a drug in your system would affect you physically or mentally leading to impaired driving. It is very important in DUI cases involving prescription or over-the-counter drugs that you have an experienced DUI defense attorney who can cross-examine the prosecutor’s expert and present conflicting expert testimony or scientific evidence.

If you or a loved one has been arrested and charged with a DUI due to either a prescription medication or an over the counter medicine in your system, call us today to speak with a Liberal Kansas DUI attorney to discuss your case.

Courage, Caring, and Commitment for Every Case – Call (620) 624-8158.

Cities We Serve

Koehn & Tahirkheli, L.L.C. serves the Southwest Kansas cities of Liberal, Garden City, Sublette, Elkhart, Johnson City, Hugoton, Ulysses, Dodge City, Meade, Seward county, and serving all other communities in Southwest Kansas.

Facing a Request for an Interview with Police or a Request to Search in Kansas: Just Say No!

Saturday, February 19th, 2011

Many people facing a confrontation with the police believe that they cannot say “no” or that telling the police no makes a person seem like the he or she has something to hide. However, the reality is that the police never ask you to make a statement, to answer questions or to search your person, property, home or vehicle because they want to keep you from being arrested. Anything you tell the police may be used to build “probable cause” to conduct a search of your home, office, vehicle or person, which may create a legally sufficient basis for an arrest. The best choice if an officer request to speak to you is to decline an interview without legal representation. Your exercise of your Miranda right to remain silent does not create probable cause to conduct a search nor sufficient legal basis for an arrest. You should not lie but instead politely indicate that you are not comfortable speaking without an attorney present.

The jails and prisons throughout the state of Kansas are filled with people who may have avoided incarceration had they just told the police “no.” Any waiver of your Miranda rights and consent to conduct a search must be voluntary for it to be effective, but the very nature of a citizen’s interaction with a police officer rarely is without some feeling of coercion. The reality is that once you decide to talk to a police officer after receiving a Miranda warning, it makes your defense much more difficult for a criminal defense attorney, particularly if you have provided damaging information. In some cases, the police will use that information as probable cause to obtain a warrant and search your home, vehicle, place of work or person. This search may turn up the evidence that lands you in jail.

If you refuse to speak without an attorney present, this is half the battle. It is equally important to refuse consent to a search when asked. There is absolutely nothing to be gained by consenting to a search. Most people presume that the officer is going to search regardless of whether consent is given. This is not a logical assumption. If the officer had sufficient legal basis to search, the officer would conduct a search without even bothering to ask for consent. If the officer is requesting consent to search, there is a good chance the officer knows that there is not sufficient legal basis to search (i.e. exigent circumstances or emergency) or to obtain a warrant.

Discovery of contraband often provides the most damning evidence in criminal cases like those involving drug offenses, theft offenses or weapons offenses. The probable cause to obtain a warrant and the specifics of how the search is conducted can often be challenged. Your criminal defense attorney may be able to get evidence like drugs, stolen property or weapons excluded if the search was illegal. If you consent to a search, your Southwest Kansas criminal defense attorney may lose these grounds for challenging the legal basis for the search as well as the way the search was conducted.

The bottom line is that cooperation with the police will almost never work to your benefit. While the fear of being arrested may motivate you to say “yes” when asked to waive your Miranda rights or to consent to a search, the desire to avoid a criminal conviction is the reason you should just say “no.” Even if you make a statement and consent to a search, an experienced criminal defense attorney, may be able to get your charges reduced or dismissed. However, you can start building your defense the moment you are contacted by police by refusing to cooperate, which may create additional legal defenses that your criminal defense attorney will use in plea negotiations or at trial.

If you or a loved one has been arrested and charged with a crime, call us today to speak with a Liberal Kansas criminal defense attorney to discuss your case.

Courage, Caring, and Commitment for Every Case – Call (620) 624-8158.

Cities We Serve

Koehn & Tahirkheli, L.L.C. serves the Southwest Kansas cities of Liberal, Garden City, Sublette, Elkhart, Johnson City, Hugoton, Ulysses, Dodge City, Meade, Seward county, and serving all other communities in Southwest Kansas.

Why the Evidence in Your Kansas DUI Case May Be Less Compelling Than It Seems

Thursday, February 10th, 2011

Many people forget that it is not against the law to drink and drive. A person only commits a crime if one’s blood alcohol level (BAC) exceeds .08 (DUI per se) or one’s driving ability is actually impaired so that a driver drives recklessly and violates traffic safety laws like speeding and drifting between lanes or is involved in a motor vehicle accident. Nonetheless, many people faced with a DUI arrest presume that a DUI conviction is inevitable based on law enforcement testimony and field sobriety or Breathalyzer tests results. What most people do not realize is that all of these forms of evidence can be effectively challenged by an experienced Kansas DUI attorney. Most people are shocked to learn that the national average for successful defense in drunk driving jury trials is 50%. We have provided some basic flaws in the common evidence used in Kansas DUI cases.

Police Officer Observations: When a police officer stops you because he suspects you are under the influence of alcohol, he will make initial observations. When you step out of your vehicle, you may seem unsteady on your feet or lean against your vehicle for balance. While an officer may attribute this to being intoxicated, the officer does not know you or your physical traits. You may have mobility issues, weight issues or other physical injuries and limitations. Because the officer does not know you he has no way to evaluate what is “normal” for you.  The fact that you may give off an odor of alcohol is only evidence that you have had something to drink not that you are impaired or over the legal limit.

Field Sobriety Testing: This complex set of unnatural movements and physical requirements are commonly and effectively challenged by an experienced Kansas DUI attorney. Many of those arrested for DUI assume there is some scientific validity to field sobriety tests (FSTs). To the contrary, FSTs result in false positive results (indicating a non-impaired person is impaired) 23% of the time.  Field sobriety tests are routinely challenged because the tests are not reliable, not administered according to strict procedures, scored inaccurately, turn on subjective impressions and fail to account for physical limitations and abilities between different subjects including being overweight or having limited mobility.

Breathalyzer Testing: Most of the time police officers will use a Breathalyzer test to measure a driver’s BAC. Breathalyzer results may be inaccurate for many reasons and can be challenged by an experienced DUI attorney in Kansas. Your DUI attorney may be able to get the Breathalyzer results excluded or otherwise call the validity of the test results into question.  Improper calibration or technical issues with the devices include sensitivity to ambient temperature as well as subject temperature; failure to properly account for variations in the human hematocrit (cell volume of blood) range; and false assumptions of the conversion factor used in converting lung air alcohol concentration to blood alcohol concentration may all form a basis for challenging Breathalyzer results.

This article presumes that you have submitted to both FSTs and Breathalyzer testing.  Hiring a Kansas DUI defense lawyer is able to have some or all of this evidence excluded if the officer lacked sufficient cause for the initial stop or otherwise violated your Constitutional rights. The point is that a DUI arrest does not mean that you will be convicted. An experienced Kansas DUI defense lawyer will know how to challenge what may appear to you to be overwhelming evidence. Remember that experienced DUI defense attorneys are able to prevail in front of a jury 50% of the time in DUI cases.