Archive for the ‘DUI - Drunk Driving Charges’ Category

Is It Possible To Get A DUI in Kansas If You Were Not Driving An Automobile?

Saturday, March 26th, 2011

Most people know that intoxicated driving can have serious criminal, civil and financial consequences. It can also endanger your life and others. A motorist who has had too much to drink and chooses not to drive should be commended, but they have to be aware that climbing into their car to sleep or to wait until some of the alcohol effects wear off can still expose them to a DUI charge.

A motorist does not have to be driving to be arrested and convicted of intoxicated driving.  Every state requires that for a DUI to be charged, a motorist has to be in “actual physical control” of the vehicle.  Typically, this means that if a person is in the car and the keys are in the ignition, even if the motor is not running, they are considered in “actual physical control.”  It may not matter if the potential driver had no intention of driving the vehicle.

The states differ in their interpretation of “actual physical control.” The Minnesota Supreme Court upheld a DUI conviction of a man with a blood alcohol level of 0.18 who had had his keys in the center console of his car. His car also would not start, but the court interpreted the phrase “physical control” to include the possibility that the defendant could have started his car, regardless of whether he intended to or not.

The New Mexico Supreme Court, however, limits physical control to situations where the state must prove the driver intended to drive.  It reasoned that public safety would be better served if motorists decided to use their vehicles as temporary shelters with no intent to drive.  In other words, being a passive occupant may does not rise to the level of actual physical control.

In most states, a motorist in their car with the engine running usually signals to law enforcement that the driver is in physical control and can drive at any moment. To escape a conviction, an intoxicated motorist should either leave their keys outside their vehicle, or find someplace else to sleep it off.

If an officer comes upon a vehicle with a driver asleep in either the front or back seat, they can ask the motorist to take field sobriety tests (FST) so that the officer can observe the driver’s coordination and performance.  A motorist can refuse to take the FST, and if the driver has a physical disability, the driver should advise the officer of his or her condition.

The FST must take place on a dry, even surface. It can include standing on one leg while counting out loud, a finger to the nose with eyes closed, a heel-to-toe walk along a line with turns, and reciting the alphabet. The officer is looking for balance, signs of swaying, and an ability to follow directions.

If a motorist performs poorly, the officer can request that the driver take a breath or blood test. A refusal can result in license suspension of at least one year.  The question of physical control can be complicated so a motorist in this situation is advised to see professional assistance from an experienced DUI or criminal defense attorney.

Receive a free initial consultation with a Liberal Kansas DUI attorney by calling (620) 624-8158 today. Koehn & Tahirkheli, L.L.C. serves the cities of Liberal, Garden City, Sublette, Elkhart, Johnson City, Hugoton, Ulysses, Dodge City, Meade, Seward county, and serving all other communities in Southwest Kansas.

Getting Convicted of a DUI in Kansas and The Impact On Your Insurance Coverage

Tuesday, March 15th, 2011

Getting a DUI can wreak havoc on your bank account, including fines, attorney fees, impound fees, suspension fees not to mention paying to get your license reinstated.  However, one of the most expensive consequences your likely to face is the long-term effect on your insurance.  If you are convicted of a DUI, your insurance company will almost certainly find out.  If you do not notify them in a certain period of time, they could cancel your insurance coverage entirely.  In most situations, your insurance company will work with you if you have had a DUI, or even multiple offenses, but it will not be cheap.

Insurance companies generally discover that a policyholder has received a DUI in a number of ways.  The first way that an auto insurance provider may learn of a policyholder’s DUI is that the policyholder may simply inform his or her insurance carrier after being arrested or convicted.  Secondly, the insurance company may uncover the DUI through its annual driving record investigations.  Finally, an insurance company may learn of a DUI through the filing of a SR-22 form (depending on state law), which is a proof of insurance certificate form that is needed when a driver’s license is re-instated.  In rare cases, insurance companies never find out about a DUI, but this is quite rare.

Insurance companies tend to deal with DUI cases in two ways.  They will either maintain a policyholder’s coverage but substantially increase the rate or cancel the policy entirely.  If the insurance carrier does not cancel the policy, they will label the driver “high risk” and substantially increase the rate.  If a person has prior DUI convictions, the insurance company will increase the rate even more.  If the insurance carrier decides to cancel coverage, it can be difficult to find an insurance company that will provide coverage at an affordable rate.

The rate may eventually go down because a DUI may come off your record after a certain period of time.  If you are cancelled and must find a smaller insurance company that insures higher risk drivers at a more expensive premium, the insurance company will file the SR-22 (depending on your state) for you so that your driver’s license can be reinstated.

Receive a free initial consultation with a Liberal Kansas DUI attorney by calling (620) 624-8158 today. Koehn & Tahirkheli, L.L.C. serves the cities of Liberal, Garden City, Sublette, Elkhart, Johnson City, Hugoton, Ulysses, Dodge City, Meade, Seward county, and serving all other communities in Southwest Kansas.

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.

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.