"If I have a interlock system in my car, can I drive a parents car instead of my own?"
There would be consequences if you were puled over or found by law enforcement to be operating a vehicle without the interlock system.
State of Kansas v. Andrew Richmeier, No. 109,518, Nov. 22, 2013
The defendant was arrested for a DUI after an officer pulled him over for speeding and concluded he was driving under the influence. After the officer arrested the defendant, he asked him to submit to a blood-alcohol test. The defendant agreed to take the test. The officer informed him he had a right to consult an attorney and submit to independent testing. When the defendant asked for an attorney, he was told he would have to bond out first. After 15-20 minutes the defendant was able to bond out, but he never contacted an attorney. The trial court suppressed the evidence relating to the defendant’s driving under the influence charge because it found the delay in providing the defendant with an attorney violated K.S.A. 2011 supp. 8-1001(k)(9) which provides the driver must be notified that “after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.” The Kansas Court of Appeals reversed the trial court’s findings holding that the 15-20 minute delay in this case gave the defendant a reasonable opportunity to contact an attorney.
The following case summaries are provided by Stacey L. Schlimmer. For complete case opinions visit kscourts.org. All cases are individual and in no way do these cases reflect every case.
STATE OF KANSAS V. PHILLIP MESSER, No. 108184 (8/23/13) (Kan. App.)(published)
K.S.A. 8-1004 – REASONABLE OPPORTUNITY FOR ALCOHOL TESTING
The Court of Appeals held that a defendant was given a “reasonable opportunity” to obtain an independent alcohol test when the driver was released from custody within 42 minutes of asking for the test and less than two hours after the traffic stop. The officer who arrested the defendant testified that he told the defendant that he was free to get his own independent testing as the department’s policy was to take a defendant for additional testing only when the suspect is to remain in custody. The defendant argued that he was not permitted to additional testing as required under K.S.A. 8-1004 which reads, “Without limiting or affecting the provisions of K.S.A. 8-1001 and amendments thereto, the person tested shall have a reasonable opportunity to have an additional test by a physician of the person’s own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8-1001 and amendments thereto shall not be competent in evidence.” The Court emphasized that although an officer can’t refuse to permit additional testing, the officer is only responsible for the driver while that person is in custody, and it is the driver’s responsibility to obtain the independent test. The Court looked at whether the defendant had a reasonable opportunity once he was released from custody to obtain an independent test. In this case, the Court held that the release of the defendant within 42 minutes of asking for the test and less than two hours from the arrest was reasonable.
K.S.A. 8-1567(j)(3) –“LOOK-BACK” PERIOD FOR SENTENCING DUI
The Court of Appeals once again held that the “look-back” period for determining the number of DUI convictions for sentencing purposes applies only to crimes committed on or after July 1, 2011.
Although the police may arrest a driver of either gender, the risk of facing DUI charges is greater if you are female. While the notion of gender-bias arises in many situations, few people realize there are a variety of reasons that DUI arrests tend to be gender biased. Because of certain metabolic characteristics of women and other factors, the likelihood that a woman will be arrested and convicted of DUI is substantially higher. Kansas DUI Defense Attorney Stacey Schlimmer understands how to use these gender based distinctions to effectively defend those accused of DUI in Kansas.
Women will typically have a higher blood alcohol concentration (BAC) than men even when they consume the same quantity of alcohol. While the tendency of men to weigh more than women is one reason for this disparity, these differences do not tell the whole story. Distinctions in the physiology and body chemistry between genders mean that men and women metabolize alcohol at different rates. An enzyme referred to as alcohol dehydrogenase (ADH) plays a fundamental role in initiating the metabolic breakdown of alcohol in the stomach. Studies show that the concentration of this enzyme is only about half the level in women that it is in men. Because women have less ADH, more of the alcohol they consume is absorbed by the small intestines causing women’s BAC level to rise higher. Research reveals that this difference in ADH levels can result in a five to ten percent difference in BAC levels between men and women.
While differences in body weight between men and women constitute an obvious factor in women having a higher BAC level, there are other physiological distinctions. On average, women have a higher percentage of body fat as opposed to muscle than men. Because the volume of blood in muscle tissue is higher than in fat tissue, the alcohol present in the blood of males is more diluted than in women. Women also have between five to twenty percent less water than women which also means that the concentration of alcohol in men’s blood is more diluted.
Field Sobriety Testing (FSTs) & Physical Observations
Because women often wear clothes and footwear that make it more difficult to walk or perform FSTs, they are more likely to be asked to submit to a chemical test of breath, blood or urine. Women wearing a skirt but concerned about modesty when exiting a vehicle or attempting to walk heel-to-toe in 2 inch heels may appear unsteady or lose their balance. While police officers are supposed to have women take off high heels and perform FSTs on solid even ground, apparel and shoes can put women at a disadvantage.
Kansas City DUI defense attorney Stacey Schlimmer aggressively defends those accused of alcohol-impaired driving offenses in Johnson County or the surrounding areas of Kansas. Our Kansas DUI defense law firm offers a confidential free consultation so call us today at 913-219-5424 or contact us online.
Criminal defendants generally are not obligated to provide statements that would be incriminating. However, this protection against self-incrimination does not shield drivers arrested for DUI in Kansas City or elsewhere in Johnson County from an obligation to submit to a chemical test to determine their blood alcohol concentration (BAC). Under this provision of Kansas law, a driver is deemed to consent to a chemical test of breath, blood or urine if he or she is lawfully arrested for driving under the influence (DUI).
If a police officer asks you to perform a BAC test following a lawful arrest for DUI, the officer has the option of determining which type of BAC test to administer and may even require that you submit to multiple BAC tests. Even if a law enforcement officer asks you to submit to a breathalyzer test, you also may be asked to submit to a blood test if you blow a 0.0 BAC so that officer can screen for drugs like marijuana, cocaine, ecstasy, methamphetamine, prescription narcotics or other controlled substances.
When a Kansas driver refuses to take a chemical test, the driver is subject to a one year driver’s license suspension for a first time refusal with the length of the suspension increasing based on the number of refusals. A second refusal results in a two-year suspension while a third refuse result in a three-year suspension. If a motorist refuses a fourth time, the suspension increases to ten years while a subsequent refusal will result in a lifetime revocation of your driving privileges.
There are certain advisories that the officer must provide both verbally and in writing under Kansas law for the license suspension to be imposed which include the following:
Although the decision not to agree to a BAC test will mean that the prosecutor will not have chemical testing results to establish that you have a BAC of .08 percent or higher, this does not preclude a conviction of DUI based on other evidence. The prosecutor can still prove that your physical or mental capacity to operate the vehicle was impaired even if your BAC did not exceed .08 percent, which constitutes the legal limit for a “per se” DUI violation. In this situation, the prosecutor will rely on the following types of evidence: