Archive for April, 2014

Appellate Court Rules Blood Draw Violated Woman’s 4th Amendment Rights

Monday, April 28th, 2014

The 4th Amendment of the United States Constitution protects persons from unreasonable searches and seizures by the government. A court determines whether a search is reasonable by carefully weighing a person’s 4th amendment rights with the government’s legitimate interests, like public safety, for example. In a recent decision, the Kansas Appellate Court found that a woman’s 4th amendment rights were violated when she was subjected to a warrantless search and seizure. The facts of this case illustrate why it is the utmost importance for persons charged with driving under the influence to have the benefit of a skilled DUI defense attorney.

In the case of State of Kansas vs. Declerck, a female motorist was involved in a single-car accident. From witness testimony, the woman lost control of her vehicle, which entered a grassy median, and rolled several times before stopping. Her sole passenger, who was not wearing a safety belt at the time of the accident, was thrown from the vehicle and later died from her injuries. The driver was transported to the hospital for her injuries.

An officer was directed to obtain a blood draw from the driver. The Officer informed the woman of the law regarding “implied consent”, but she did not agree to the draw. Under Kansas State law a person who operates a motor vehicle, is deemed to have given consent to a test (blood, urine or breath) to determine the presence of alcohol or drugs. The law also provides that an officer shall obtain a test from a driver, who is involved in an accident, which results in serious injury or death, and the driver could be cited for a traffic violation. Over the woman’s objection, the officer obtained a blood sample. Lab tests later revealed the presence of THC, the active substance in marijuana, in the woman’s blood and concluded that the woman was under some level of impairment at the time of the accident. The woman was thereafter charged with involuntary manslaughter – DUI.

In court, the woman’s attorney made a motion to have the evidence related to the blood draw suppressed, since the draw was done without a warrant, without probable cause and without the woman’s consent. The court granted the motion and the State appealed. In reaching its decision, the Appellate Court confirmed that a blood draw is considered to be a search and seizure and therefore must be done in accordance with the 4th amendment.

The Court concluded the officer did not have probable cause to believe the woman was under the influence of drugs or alcohol at the time of accident and therefore, the blood draw violated the woman’s 4th amendment rights. The court also found that the Kansas Implied Consent law did not fall into the “consent” exception for a warrantless search. The Court did recognize that the State has an interest in protecting public safety on the roads. However, the Court determined that the portion of the Kansas law that allows a blood draw in accidents involving serious injury or death to be unconstitutional, as the law does not contain language that the person must be suspected of driving under the influence and not just of a traffic violation.

To Learn More, Contact the Whitman Law Offices Now!

If you have been charged with driving while under the influence of alcohol or drugs, then you need an experienced Kansas DUI Defense Attorney. For almost four decades attorney Charles E. Whitman has defended individuals charged with DUI. Skilled Kansas DUI Defense Attorney, Charles E. Whitman will fight to make sure that your rights are protected. To schedule your free and confidential consultation, contact the Whitman Law Offices today at (785) 843-9460. At the Whitman Law Offices, we look forward to providing clients with exceptional legal services.

The Do’s and Do Not’s of Sobriety Checkpoints

Sunday, April 20th, 2014

It is late in the evening and you are your spouse are driving home. You spent the evening celebrating at a friend’s wedding. As you make your way home, traffic on the otherwise not so busy street grinds to a halt. You notice flashing lights ahead and then you realize that you have encounter a sobriety checkpoint. If you are like most drivers, you may not have a clue as what you should do or not do at a checkpoint. Here is a list of pointers to keep in mind, in the event you ever encounter a sobriety checkpoint:

  • DO NOT panic. From time to time, it is reported in the news of a motorist attempting to avoid a checkpoint by attempting to drive around the checkpoint or making a U-turn. This is never a good idea, it will only make you look very suspicious to the officer. The police are also normally prepared to chase after any vehicle who attempts to avoid the checkpoint.
  • DO: Use caution. Sobriety checkpoints are often setup at night and not well lit. Be careful maneuvering and follow the officer’s driving directions for navigating the checkpoint.
  • DO NOT feel the need to be chatty with the officer. He or she may ask you questions as to your where you are headed to or from. You do not have to offer any information that you do not think is necessary. You are well within your rights to refuse to answer any of the officer’s questions.
  • DO: Furnish your driver’s license to the officer at his or her request. As you approach the officer he or she will generally request to see your license and sometimes proof of insurance. You will need to produce these documents and it is better if you can have both ready so that you are not fumbling with your wallet, purse, or in your glove box in front of the officer.
  • DO NOT feel compelled to participate in a field sobriety test. Motorists are not required to complete field sobriety tests. These tests are difficult for even a sober person to pass, so it best to refuse participation.
  • DO be polite. Being rude or showing attitude with the officer is not going to help you in this situation. Remember the saying, you can catch more flies with honey than vinegar. A polite refusal is perfectly acceptable.
  • DO NOT refuse to get out of the car. If the officer asks you to step of the vehicle, then do as he or she requests.
  • DO request an attorney and thereafter keep silent if arrested on suspicion of driving under the influence of alcohol or drugs (DUI). A person cannot be punished for exercising his or her Miranda rights.

As always if you have been drinking it is always a good idea to choose not to drive. Remember that you have options, you could spend the night, call a cab or a sober friend for a ride, use a designated driver, or take public transportation.

To Learn More, Contact the Whitman Law Offices Now!

If you have been charged with driving under the influence of drugs or alcohol after being stopped at a sobriety checkpoint you need an experienced Kansas DUI Defense Attorney. Only a skilled Kansas DUI defense attorney will be able to determine if your rights were violated. Contact the Whitman Law Offices today at (785) 843-9460 to schedule your free and confidential consultation. Remember, if needed one of our attorneys can also make arrangements to visit you in jail. Attorney, Charles E. Whitman, has more than 35 years of experience representing persons charged with DUI and will utilize that knowledge to your advantage.

Penalties Escalate for Repeat DUI Offenders

Thursday, April 10th, 2014

In 2011, it was estimated that more than 1.2 million people in this country were arrested for driving under the influence of alcohol or drugs (DUI). The saddest fact is that a significant portion of drivers convicted each year of their first DUI will not learn their lesson not to drink and drive. It is estimated that approximately one-third of those individuals arrested each year for DUI have a previous DUI conviction. As lawmakers try to crack down on the DUI recidivism rate, the penalties for a second, third or even a fourth offense, escalate accordingly. If you have a DUI conviction, you need to be aware of the increased penalties you could face if charged with a subsequent DUI. Jail time, fines and administrative penalties increase for each ensuing DUI conviction as follows:

First Conviction – Class B nonperson misdemeanor

  • Sentence: Range from not less than 48 hours (or 100 hours of community service) to not more than 6 months in jail.
  • Fines: Range from not less than $750 but not more than $1,000, plus court costs.
  • License suspension between 30 days and one year. Restriction of an Ignition Interlock Device for up to one year following license suspension.

Second Conviction – Class A nonperson misdemeanor

  • Sentence: Range from not less than 90 days to not more than one year in jail, of which 5 days must be served.
  • Fines: Range from not less than $1,250 but not more than $1,750, plus court costs.
  • License suspension of one year. Restriction of an Ignition Interlock Device for at least one year following license suspension.

Third Conviction – Nonperson Felony (if the conviction occurs within 10 years of the previous conviction)

  • Sentence: Range from not less than 90 days to not more than one year in jail, of which 90 days must be served.
  • Fines: Range from not less than $1,750 but not more than $2,500, plus court costs.
  • License suspension of one year. Restriction of an Ignition Interlock Device for at least two years following license suspension.

Fourth Conviction – Nonperson Felony

  • Sentence: Range from not less than 90 days to not more than one year in jail, of which 90 days must be served.
  • Fines: $2,500 plus court costs
  • License suspension of one year. Restriction of an Ignition Interlock Device for at least three years following license suspension.

There are also many not so apparent penalties that go along with successive DUI convictions. For example, it will be much more costly and more difficult to find car insurance if you have one or more DUI convictions on your record. A person’s third or fourth DUI conviction will also make that person a convicted felon. In the United States, a convicted felon may be prohibited from exercising such rights as serving on a jury or voting in an election. Those individuals with felony records are also prohibited from owning a firearm. Therefore, if you have been charged with a DUI it is of the outmost importance that you afford yourself the benefit of having qualify and aggressive representation, regardless of whether it is your first or third DUI arrest.

If You Have Been Charged with a DUI in Kansas, Contact the Whitman Law Offices Now!

Driving under the influence of drugs or alcohol is a serious crime and with it comes some pretty serious penalties. If you have been charged with DUI you need an experienced Kansas DUI Defense Attorney. Only a skilled Kansas DUI Defense Attorney will be able to thoroughly review your case and provide you with aggressive representation. Call the Whitman Law Offices today at (785) 843-9460 to schedule your free and confidential consultation, Attorney Charles E. Whitman has more than 35 years of experience representing persons charged with DUI. You can trust the Whitman Law Offices to make sure all of your legal options are considered.

Kansas Supreme Court Ruling – Smells Like a Good Decision

Tuesday, April 1st, 2014

Imagine this scenario. You just dropped off your buddy at his house and you are driving home. It was a fun night—or at least until the very end. You had a good time until your friend got a little tipsy and tried to take his drink into your vehicle, spilling it over the car floor. You had agreed earlier in the evening to be the designated driver and left the bar without having a single drink. But thanks to your friend, your car smells like a bottle of whiskey. On your way home, you are pulled over by a police officer for failing to come to a complete stop before making a right hand turn. The officer smells the alcohol emanating from your vehicle. You can tell from the officer’s questions that he thinks that you have been drinking and wants to search you and your vehicle. You think to yourself, can my vehicle really be searched, just because my friend spilled his drink in my car?

Well, in March, the Kansas Supreme Court issued a ruling in the case of State v. Stevenson, which in part, sheds some light on this type of scenario. Both state and federal law allow police to search a vehicle that has been pulled over on a traffic stop, without a warrant, if the totality of the circumstances indicate to the officer, that there is a fair probability that the vehicle contains either evidence of a crime or contraband. In the case of Stevenson, a man in a SUV was pulled over for a traffic stop for a turn signal violation. Upon approaching the vehicle the two officers observed a strong smell of alcohol. One officer had the man exit the vehicle to perform field sobriety tests. The other officer decided to search the SUV believing there was an open container violation, as he observed a strong odor of alcohol coming from the vehicle, despite the fact that the man was not inside the vehicle. The officer, through his search of the vehicle found what he believed to be spilled wine on the floor of vehicle and a closed partially full container of wine in the back of the vehicle, along with methamphetamines. Although the man was not charged with DUI, he was charged with possession of illegal drugs.

At trial the man’s attorney argued that the search was illegal. The Supreme Court in its ruling agreed with the man’s attorney. The court reasoned that since alcohol is a legal substance, a strong odor of alcohol did not give the officers the right to search the man’s vehicle. This case is significant in that it gives motorists in Kansas some clarification as to the law regarding unlawful searches. The case also highlights why it is so important to hire an experienced Kansas DUI defense attorney if you have been charged with an alcohol or drug related offense. Only a seasoned Kansas DUI defense attorney can make sure that the police follow the law and present all of your defenses.

Contact the Whitman Law Offices Now!

If you have been arrested and charged with DUI or another drug or alcohol related offense, you need the counsel of an experienced Kansas DUI Defense Attorney. For almost 40 years, the Whitman Law Offices has been aggressively defending DUI clients both in and outside of the courtroom. Contact the Whitman Law Offices today at (785) 843-9460 to schedule your free and confidential consultation. It is imperative that if you have been charged with a DUI to seek counsel immediately. If required, we can make arrangements to visit you in jail. Our seasoned DUI Defense Attorneys look forward to providing you with superior legal services.