A program of the Kansas Department of Transportation

Volume 1, Issue 2 July 2008

MUNICIPAL COURT CAN CHARGE FEE FOR SENDING THE 30-DAY LETTER

SB 366 authorizes a district or municipal court to charge an additional fee of $5 for mailing written notice that failure to appear in district court or municipal court or pay all fines, court costs, and any penalties within 30 days of the notice will result in the Division of Vehicles being notified to suspend the person’s driver’s license. It also clarifies that the “30 days to comply” begins with the mailing of the notice from the court, not its receipt by the offender.

TRAFFIC CITATION MUST CONTAIN NOTICE OF POSSIBLE SUSPENSION

SB 366 also amends K.S.A. §8-2106(f) to provide that traffic citations must not only contain notification to the offender that he or she may enter a written entry of appearance, waive the right to a trial and plead guilty or no contest, but it now must also contain “a provision that the person’s failure to either pay such fine and court costs or appear at the specified time may result in suspension of the person’s driver’s license as provided in K.S.A. §8-2110.”

INCREASING PHOTO FEES FOR DRIVER’S LICENSES

SB 23 provides more resources to the Department of Revenue to make drivers license photos more secure and to prepare Kansas for compliance with the federal REAL ID Act. The fee will increase from $4 to $8.

MANDATORY BLOOD AND URINE DRAWS IN THE CASE OF COLLISION RESULTING IN SERIOUS INJURY OR DEATH

HB 2617 sets up a slightly different procedure for obtaining blood and urine tests when a person has been involved in a collision involving serious injury or death. In the case of just regular injuries, the officer must have reasonable grounds to believe the person was operating a vehicle under the influence of alcohol or drugs and has either arrested the person for DUI or the person was involved in a collision involving injuries. The person still maintains the right to refuse to take the test.

However, under the amendments, if a person is involved in a collision involving serious injury or death, and the operator could be charged with any traffic offense (as defined in K.S.A. 8-2117), the officer can order a test of blood, breath or urine without any further probable cause for DUI.

Serious injury is defined as any injury to any person involved in the collision which has the effect of (1) disabling a person from the physical capacity to remove themselves from the scene; (2) rendering the person unconscious; (3) the immediate loss of or absence of the normal use of at least one limb;

(cont. page 2)

Excerpt from “The Verdict,” The official publication of the Kansas Municipal Judges Association, Editor and author,

Karen Arnold-Burger, Municipal Judge of Overland Park.

Page 2 Street Legal

(4) an injury determined by a physician to require surgery; or (5) other wise indicates the person may die or be permanently disabled by the injury.

If there is a serious injury, the officer is required to get both a blood and urine sample from the drivers involved, unless the officer has reasonable grounds to believe the actions of the driver did not contribute to the collision. The driver has no right to refuse the tests. If necessary, the officer may use “reasonable restraint practices” to restrain the person in order to obtain the appropriate samples.

Editor’s Note: K.S.A. 2007 Supp. §8-2117(d) defines “traffic offense” as any violations in the uniform act regulating traffic on the highways, any of the provisions regarding driver’s licenses in articles 1 and 2 of chapter 8 and the proof of insurance statute, and any mirror ordinances or county resolutions. Therefore, if the officer cannot find proof of insurance at the scene, he or she can order a blood or urine draw.

ACTIONS REQUIRED BY MEDICAL PERSONNEL AND LAW ENFORCEMENT OFFICERS FOR DUI

BLOOD AND URINE DRAWS

HB 2617 also contains some very specific provisions regarding blood and urine draws for DUI purposes.

First, when directed in writing by a law enforcement officer, medical personnel are required to draw the sample (blood and/or urine, the officer can request both) and deliver it to the officer as soon as practical as long as the collection of the sample itself does not jeopardize the person’s life, cause serious injury to the person or impede the medical assessment care and treatment of the person. The medical professional shall not require the person to sign any additional consent or waiver form. The samples taken are to be independent samples and not a portion of a sample collected for medical purposes. The person collecting the sample is required to complete the collection portion of the document provided by the law enforcement officer.

(cont. page 3)

(Cont).

California and Washington State will follow the lead of a handful of other states and prohibit drivers from using hand-held cell phones while on the road, but will allow headsets. California teens can’t use their cell phones at all when driving. Anyone who violates the new laws risks a $76 fine for the first offense in California, and a $124 fine in Washington. Other states with similar laws are Connecticut, New Jersey, New York and Utah as well as Washington, D.C.

Illegal immigrants also face new driver’s license checks. In Oregon, applicants for licenses must prove they are in the country legally by providing Social Security numbers and proof of identity and Oregon residency. A new Georgia law applies to everyone but is aimed at illegal immigrants who can’t get driver’s licenses. The law makes it a felony to be caught driving without a license for the fourth time in five years, although anyone who presents a valid driver’s license at a hearing is not charged.

In the first six months of holding a new license, Arizona teens can’t drive between midnight and 5 a.m. and cannot have more than one other teen in the car who is not a relative. After similar laws in Connecticut and Minnesota take effect Aug. 1, only three remaining states will have no restrictions on newly licensed drivers: Arkansas, Kansas and North Dakota.

In Georgia, a fourth driving-under-the-influence conviction in 10 years is now a felony, and a new Virginia law cracks down on what’s called the “Baby DUI,” when drivers under 21 have a blood-alcohol count of 0.02, a quarter of the limit for adults. Those convicted will now have their licenses suspended for a year and pay $500 or perform 50 hours of community service, with the possibility of spending a year in jail.

Mississippi parents now have to buckle their children into booster seats until they are six-years- old, and Michigan’s similar law extends the age to seven. Maryland’s stricter law: children must sit in booster seats until age eight, starts June 30, and Massachusetts’ law, also covering children to age eight, will take effect July 10.

If the person is required to be restrained to collect the sample, law enforcement is responsible for applying said restraint “utilizing acceptable law enforcement restraint practices.” The restraint must be effective in controlling the person in a manner not to jeopardize the person’s safety or that of the medical personnel during the drawing of the sample and without interfering with medical treatment. When the sample is a urine sample, and the person is able to provide it independently, whenever possible, a same sex law enforcement officer shall supervise (witness) the collection.

It is made clear that the testing requested for DUI purposes is not considered to have been conducted for any medical care or treatment purposes. The test results are not subject to physician-patient privilege or any other law that would appear to prohibit the transfer, release, or disclosure of the sample. The hospital is required to provide the law enforcement officer with the results of the test, the person’s name whose bodily substance was drawn or tested, the location of the test procedure, the names of all health care providers and personnel who participated in the

Page 3 Street Legal

Editor’s Note: This will require amendment to POC §5.2 or any similar ordinances your city may have.

MICRO UTILITY TRUCKS

HB 2119 defines a micro utility truck as a motor vehicle which is (1) not a work-site utility vehicle; (2) is over 48” wide; (3) is not more than 144” long; (4) weighs over 1500 lbs; (5) manufactured with a metal cab; and (5) is able to exceed 40 mph. Highway registration and insurance are not required. The bill makes it unlawful to operate a micro utility truck on any interstate, federal, or state highway; within the corporate limits of any city unless authorized by such city; and or any public highway unless the vehicle comp l ies w i t h equ ipment requirements. It can cross the highway. In addition, anyone who sells five or more of these vehicles would come under the Vehicle Dealer Licensing Act.

This bill also repeals K.S.A. §8-15,505 (STO §114.2), which prohibited the operation of work-site utility vehicles on highways and amends the definition of work-site utility vehicle at K.S.A. §8-1493 (STO §1) to exclude micro utility trucks. It seems to leave work-site utility vehicles unregulated. The bill did originally have some language regulated golf carts (which fit the definition of work-site utility vehicle), that language was removed before final passage.

(cont. on page 4)

procedure or test, and the date and time of the test or procedure. The bill also adds “licensed physicians assistants” to the list of persons who can draw blood. All such personnel are immune from civil or criminal liability when acting at the direction of a law enforcement officer.

All costs of conducting the tests including the cost of evidence collection kits are to be paid by the county where the alleged offense was committed. The county can be reimbursed such costs by the defendant as part of a court cost assessment. The cost cannot exceed the current Medicaid rate for such procedure or test, or both.

DUI CLEAN-UP LANGUAGE

Due to the fact that K.S.A. 8-1567 was amended twice during the 2007 Legislative Session, one version had the Elliott –inspired jurisdiction language and the other did not, HB 2617 clarifies the version that was intended, which includes the Elliott jurisdiction language at §8-1567 (p). See, State v. Elliott, 281 Kan. 583 (2006).

FURNISHING ALCOHOL TO A MINOR

HB 2908 amends K.S.A. §21-3610 to provide a defense to the charge if the person presented to the defendant a driver’s license or official document that “reasonably appeared” to contain a photograph of the minor and purporting to establish that the minor was 21 or over. This bill also made some amendments to provis ions concerning farm wineries.

(Cont).

Anybody who thinks talk is cheap has never argued with a traffic cop. Henny Youngman

ALL DOCKET FEES, INCLUDING REINSTATEMENT FEES AND

MUNICIPAL COURT APPEALS FEES

INCREASED BY $9

Effective July 1, 2008, virtually all docket fees have been increased by $9. This is to fund a judicial branch no judicial sa lary adjustment fund. Reinstatement fees will go up to $59 per charge and municipal court appeal fees will go up to $71.50. See HB 2968.

DISPLAY OF OLD OR FOREIGN LICENSE PLATES ON THE FRONT

OF A VEHICLE

HB 2622 prohibits the owner of a Kansas registered vehicle from affixing any registration on the front of the vehicle. The same limited exceptions apply for truck tractors, model year plates on a n t i q u e v e h i c l e s a n d personalized plates. Since the phrase “Kansas registered vehicle” was inserted in the statute, it would seem to suggest that there is no prohibition against out of state cars displaying front license plates.

DMV CAN DESTROY RATHER THAN RETURN SURRENDERED DRIVER’S

LICENSES

HB 2665 amends K.S.A.§8-257 to allow the DMV to destroy driver’s licenses that are required to be surrendered due to suspension or revocation. Prior law required the division to keep and return the licenses at the end of the suspension or revocation.

“GOLD STAR MOTHER” AND “IN GOD WE TRUST” LICENSE PLATES

HB 2691 establishes a “Gold Star Mother” license plate available to mother of solders who died in active duty. Kansas is the 23rd state to begin issuing such plates. HB 2704 establishes “In God We Trust” specialized license plates for those so inclined.

Page 4 Page 4 Street Legal

(Cont.)

LEO Intoxilyzer 8000 Training

Impaired Driving: For Prosecutors and LEO’s

Sept. 22-23 Wichita

For further information regarding times and location contact Karen Wittman

kstsrp@gmail.com

14th Annual Training Conference on Drugs, Alcohol and Impaired Driving

August 10-2 Indianapolis, IN

2008 MADD National Conference

Sept. 4-6 Dallas, TX

Impaired Driving National Enforcement Crackdown

August 3 — September 1

KCDAA Fall Conference

October 20-21 Overland Park, KS

LEO SFST Credential Course

Sept. 30 & Oct 1 KHP Training Academy

Oct. 2- 3 KCKS Training Academy

Oct. 14-15 Ellis County Sheriff’s Office

Oct. 28-29 Finney County Sheriff’s

Nov. 11-13 Topeka Police Department

8 hours

8 hours

8 hours

8 hours

8 hours

Aug. 6 Kechi Police Department (Tentative)

Aug. 26-28 Reno County Sheriff’s Office

Coming in the next issue

• Part II—Toxicologist: Defendant presents a case

• Case law updates

Page 5 Street Legal

Witness for the Prosecution: Toxicologist

By Karen C. Wittman,

Kansas TSRP and former Forensic Chemist

In a DUI case from time to time the state may have to call a KBI toxicologist to prove the defendant’s blood alcohol limit or drugs. Are you prepared for that? This article will look into ways in which you should prepare yourself for the challenges of calling an expert witness.

FIRST: You should review any case law or statutory authority that may limit your ability to present toxicology information, i.e. K.S.A. 8-1001, 8-1006, 22-2902a. You should also research issues dealing specifically with blood and urine in a DUI case. Some of the cases you may wish to review State v. Brown, 174 P.3d 458 (Table), 2008 WL 142119; State v. McHenry 136 P.3d 964 (Table), 2006 WL 1816305; State v. Bernal 122 P.3d 42 (Table), 2005 WL 2949560 State v. Bliss 95 P.3d 1042 (Table), 2004 WL 1878357

SECOND: Get the expert’s report, resume, and any articles they may have published or participated in writing.

Also you should be aware of your state laboratory’s protocol for reporting a DUI blood alcohol level and drug screens. Get a copy of this. Once you have obtained all this….READ THEM!!! You may not understand everything you are looking at but at least you are aware they exist and may be able to craft some initial questions to ask your expert.

THIRD: Schedule a pretrial conference with your expert. Never skip this step. Whether you wish to skip steps number one and two is up to you, but never, never put an expert witness on the witness stand without discussing all the issues involved in the analysis and their opinion. The expert can give you tips on how to present the information they have in a concise easy to understand fashion. This rule applies even if you had prior discussions with the expert before on other cases. Each case is unique and requires special attention.

FOURTH: At the pretrial conference, you should go over the expert’s formal education, on-the-job training, whether they have qualified as an expert before in the field of toxicology, and do they have any pharmacology training. Go over any articles the toxicologist wrote or participated in research that became published. Is the toxicologist aware of any literature that may be an issue in your case, i.e. collection of samples, refrigeration, and instrumentation used.

FIFTH: Discuss the packaging of blood and urine evidence. Did the expert have any concerns of the packaging of the evidence they received? Was the sample in a condition that required little or no preparation, i.e. No clotting of the blood? What issues are there, if any, concerning refrigeration of samples? Are there any special requirements by law enforcement in the submission of these types of samples into the laboratory? Are there any special written protocols for handing and packag ing ma te r ia l s f o r submission to the laboratory and were they followed? See: The Stability of Ordinary Blood Alcohol Samples Held Various Periods of Time Under Different Conditions Journal of Forensic Sciences Vol. 10, Number 2 p a g e s 1 9 2 - 2 0 0 ( 1 9 6 5 ) (Contact me for a copy)

(cont. on page 6)

SIXTH: Now you are prepared to discuss the actual analysis of the sample(s). Did the expert run into any problems in the testing? Was there any deviation from the protocol required by the laboratory? If so, why and how could the results still be reported? If the expert did not quantify any drugs found, have them explain why. If they were able to quantify the results, is there any significance with the levels reported? Can the expert help you craft questions to make what they did understandable to a jury?

SEVENTH: Discuss the limitations of what the toxicologist can say? Based on the results of testing, can the toxicologist comment on the person’s ability to drive or at least if they were “impaired” or not? Can they testify what time frame the drugs were ingested?

EIGHT: Tell the toxicologist your theory of the case. Let them know any quirks concerning the defense attorney. Let them know what problems you foresee in their testimony. Give the expert a

heads up on what you expect them to do and see if they can meet those expectations. Never tell the expert what to say!!! Craft your discussion: Can you say if the defendant was impaired. Never say…I want you to say the defendant was impaired. There is a difference!!

NINE: End the conference with “Is there anything else you think I should know to help prepare you and me for the presentation of this evidence.” Always discuss when and where you expect the witness to appear and let them know in what order they will be called.

TEN: Never stipulate to the qualification of your expert. The jury has no idea who this person is and whether or not they are qualified to give the information that you seek. The defense attorney may wish to “save time” and stipulate. However, you have just missed a vital opportunity to make your witness shine.

With this type of preparation you will be fully prepared to meet your obligation as an attorney for the prosecut ion to effect ively advocate for the state. Good Luck!

Next month….”OH NO, the defendant is presenting an expert!! “

With almost 1.5 million motorists being arrested for driving under the influence in 2006 (according to a Traffic Safety Fact Sheet published by the National H i g hway T r a f f i c S a f e t y Administration), it is obvious that drinking and driving is a large problem in our nation. While there are many possible deterrents to driving under the influence (ignition interlocks, community education and awareness, and better traffic safety legislation), one well known disincentive to any crime is t imely and consistent adjudication. One proven way to help ensure that is through monitoring the courts.

Research conducted in Maine on a MADD court monitoring program, as well as research funded by the National Highway Traffic Safety Administration, found that court monitored cases resulted in fewer dismissals and fewer plea agreements. While there were not as many plea agreements total, there were more guilty pleas in monitored situations.

Page 6 Street Legal

(Cont).

By Amy Rose Karr, Court Liaison, DUI Victim Center of Kansas

(Cont. pg 7)

In science, one tries to tell people in such a way as to be understood by everyone something that no one ever knew before. But in poetry, it's the exact opposite. Paul Dirac

H i g hway T r a f f i c S a f e t y

Further, cases that were moni-tored had higher conviction rates than cases that weren’t, as well as stiffer sentences imposed. Another interesting find in this research was that in areas where courts were monitored, DUI/DWI arrests increased. We know that the paperwork and time involved in making a DUI arrest may not seem worth it when officers consider the long court process ahead of them. Some hypothesize that knowing they will have another partner or friend in the court (a court monitor) encourages officers to follow through on more DUI arrests.

In October 2007, the DUI Victim Center of Kansas was awarded a grant by the Kansas Department of Transportation to focus efforts on a court monitoring program aimed at keeping a watchful eye on the criminal justice process in cases of alcohol or drug impaired driving. The ultimate goal of this new project is one that we know is of utmost importance to you as well; to make our roads and communities safer by eliminating DUI crimes. While many of you may feel reluctance to having some one looking over your shoulder through an already stressful court process, that is not our intention. The DUI Victim Center aspires to become a partner with you, offering back up support while you continue to fight on the front lines.

After several months of research, p l a n n i n g , a n d o p e n communication with judges, prosecutors, court service officers, and law enforcement, we are in the first stages of what we

hope will be a long-lasting and ever growing program. Currently, we are monitoring cases involving victims in the Sedgwick County area, as well as Administrative Drivers’ License Hearings. We are also tracking several hundred felony DUI cases and cases which are filed in municipal court as a misdemeanor then sent to district court to be filed as a felony. Several efforts are being made to recruit volunteers in the area through media, cooperative education programs at local colleges and universities, and community involvement. We encourage area prosecutors and police officers to come to offer any suggestions for this program, as well as specific cases they feel should be monitored. We understand that you know better than any one the cases and situations that need to be monitored. One future objective is to monitor every felony case in the Sedgwick County area.

Listings of DUI felony cases involving one or more victims can b e a c c e s s e d t h r o u g h CourtWatch on our Web site , www.duivict imcetner.com . Databases of all felony DUI cases currently being tracked, as well as monitored Administrative Drivers’ License hearings will soon be made available via the web.

We hope to expand CourtWatch to other areas of the state as well.

The DUI Victim Center of Kansas

hopes to build a strong

par tnersh ip wi th judges ,

prosecutors, law enforcement,

and the community to achieve the

common goal of eradicating DUI

crimes. CourtWatch is an

effective way of doing that. If you

would like to join our efforts to

fight this terrible crime, please

contact our agency by phone at

(316)262-1673 or by e-mail at

arkarr@duivictimcenter.com.

You can donate your time or

money to any of our projects. We

need concerned citizens who are

available to sit in the courts to

monitor DUI cases. The more

volunteers we have, the more

successful we are. As effective

as court monitoring is, the

research shows that results are

found only when monitors are

sitting in the courtroom. If you

are interested in court monitoring

outside the Wichita area, our

agency would be happy to work

with a group of volunteers

interested in monitoring the

courts in your area.

Page 7 Street Legal

For more information about CourthWatch go to

www.duivictimcenter.com or see

Shinar , D. (1992). Impact of court monitoring on the adjudication of driving while intoxicated (DWI). Accident Analysis and Prevention 24, pp. 167-179.

Probst, J., Lewis, J., and Asunka, K. et

al. (1987). Assessment of Citizen Group

Court Monitoring Programs . DOT HS

807 113. Washington , DC : National

Highway Traffic Safety Administration

(Cont).

IMPAIRED DRIVING SEMINAR Applications are now being accepted for the “Joint Training Seminar: Impaired Driving Investigation, Reconstruction, and Prosecution” for prosecutors and law enforcement officers. I highly encourage anyone interested to contact Lavonda Hooper at the Drug and Alcohol Unit of the KHP at 785-822-1765

or email, lyhooper@khp.ks.gov to save your space. This training is FREE and will be held September 22 and 23, 2008 at the Cowtown Pavilion in Wichita, Kansas. This course will give bo t h l aw o f f i c e r s and prosecutors a more thorough understanding of the detection and investigation of a driving while impaired case, as well as how to effective present information gathered in court. Space is limited so please contact Lavonda today!!!!

Kansas Traffic Safety Resource Prosecutor

Karen C. Wittman

Box 1656

Topeka, KS 66601-1656

AUGUST LABOR DAY CRACKDOWN

The 2008 impaired driving crack-down campaign runs August 15th through the Labor Day Weekend and officers should be out in full force to help get more impaired drivers off the roadways.

For Law Enforcement: I urge you to participate in sobriety checkpoints or request your superiors to activate saturation patrols during this time. For Prosecutors: I urge you to promote and get involved in sobriety checkpoints. Contact the person in charge of the check lane and request to come and watch. Attend the preparation meeting! You will be amazed how much easier it is to defend a challenge to a check lane if you actually watch one in action.

Kansas TSRP, Karen Wittman

If you wish to continue receiving the Street Legal newsletter please contact

Karen Wittman

kstsrp@gmail.com