Archive for May, 2014

Appellate Court Rules No 6th Amendment Right for DUI Diversion Proceeding

Wednesday, May 28th, 2014

The Constitution of the United States is the cornerstone document of not only our legal system, but also of our government. The Constitution, which went into effect back in 1789, not only outlines the three basic branches of our federal government, it also protects what most Americans know as each citizen’s “fundamental rights”. These rights are embodied in the first ten amendments to the Constitution and are collectively known as the Bill of Rights.

Most Americans know that the 6th Amendment of the Constitution protects the rights of criminal defendants and includes the right to be represented by an attorney. However, many Americans are not aware that the right ‘to an attorney in a legal proceeding’ under the 6th Amendment does not apply to all types of criminal cases. Recently, the Kansas Appellate Court addressed the issue in the case of State of Kansas vs. Tims of whether a criminal defendant has the right to counsel under the 6th amendment in a DUI diversion proceeding. The relevant facts of the case are as follows:

Daniel Tims was arrested and charged with DUI in 2012. However, this was not Tims’ first DUI. Tims had been previously found guilty of DUI in 2004 and entered into a diversion agreement on another DUI in 2002. The State charged Tims 2012 DUI as a felony since under Kansas State law a third DUI conviction is considered a felony if the person had a prior DUI conviction in the proceeding 10 years. Tims’ attorney filed a motion with the court to exclude Tims’ 2002 DUI diversion from his criminal history arguing it was invalid as Tims’ was without counsel. The district court agreed with Tims’ position and granted his motion. Although Tims was found guilty on the 2012 DUI charge, he was sentenced to a 2nd conviction misdemeanor as opposed to a 3rd conviction felony, since his uncounseled DUI was not considered as a conviction. The State appealed on the basis that the sentence was illegal.

The appellate court concluded that a criminal defendant does not have the right to appointed counsel under the 6th amendment. The Appellate court did determine that a defendant does however, have the right to retain private counsel if he or she so desires. The court found that during the diversion conference, Tims knowingly and voluntarily waived his right to counsel. The court found that Tims’ waiver of his right to counsel was valid and remanded the case for resentencing as a 3rd conviction felony DUI.

The most important lesson to learn from this court decision is that it is always a good idea to consult with an experienced Kansas DUI Defense Attorney as soon as possible after your arrest. Only a seasoned DUI defense attorney will be able to educate you on the law and help you understand and evaluate your legal options. Another thing to remember is that if you accept and complete a DUI diversion it can and most likely will be used against you in the event you are charged with another DUI in the future. This means that you must take each and every DUI seriously.  Do not be fooled into thinking that a first DUI does not really matter.

If you have been arrested for driving while under the influence of alcohol or drugs, it is imperative that you speak with an experienced Kansas DUI Defense Attorney as soon as possible. For more than thirty five years, attorney Charles E. Whitman has provided aggressive representation for individuals throughout Lawrence and Northeast Kansas who were arrested for DUI. To schedule your free and confidential consultation, contact the Whitman Law Offices today at (785) 843-9460. At the Whitman Law Offices, we will work hard to make sure that your rights are protected. Do not trust your case to just any attorney. Call our seasoned DUI defense attorneys today!

Arrested for DUI? Avoid these Five Common Mistakes

Saturday, May 17th, 2014

Being arrested for driving under the influence or “DUI” is not exactly a thing any person wants to have happen in their lifetime. That being said, a DUI is not a death sentence and your life is not over. However, once you have been arrested for DUI, it is time to start thinking about how to avoid making  further mistakes. Your first mistake was obviously the decision to drink and drive. But if you are smart, you can avoid making these other common blunders that plague drivers who are arrested for DUI:

1.      “Roll over and play dead:” So you blew a .10 and were arrested for DUI. This does not mean that you should roll over and play dead i.e., plead guilty and hope for the best. Just because you blew over the .08 blood alcohol concentration limit—does not mean that you should just lie down and accept whatever fate the judge hands to you. A seasoned Kansas DUI Defense Attorney will thoroughly review your case to determine whether you have any defenses. It is also possible that the arresting officer made an error. Do not be fooled into thinking the Judge will have sympathy for you just because you chose to plead guilty.

2.      Delay hiring a Kansas DUI Defense Attorney: If being arrested for DUI was your first encounter with the criminal justice system it can be quite a shock. You may be wondering how this arrest will impact your life or how you will get to work or the kids to school now that your license has been revoked. You may be fooled into thinking you have time to look for an attorney later—since the trial could be weeks or even months away. Right? Wrong! You want to have an attorney working on your case as soon as possible. The period of time between your arrest and your first court appearance can be a very critical period of time in your case. Make hiring an attorney your first priority.

3.      Not hiring an experienced DUI defense attorney: Maybe you know just how important it is to have an attorney represent you. However, your search for an attorney consisted of talking to a friend (or family member or neighbor) whose cousin is an attorney so you just went ahead and decided to hire them. Big mistake! You do not even know if this attorney concentrates a significant area of his or her practice on DUI defense. This is your life and your future. Do not risk hiring just any attorney—find a knowledgeable Kansas DUI Defense Attorney.

4.      Failing to appear in court: Do not make the mistake of not showing up for your first required court appearance or even being late. The judge can issue a bench warrant for your arrest and revoke your bond. Not being able to drive is no excuse for not appearing in court.

5.      Driving with a revoked license: Another bone head mistake which happens more often than most people would think, is when a driver arrested for DUI drives after his or her license has been revoked. Some people have even made the mistake of driving to their court appearances! Do not make this mistake!!

If you have been arrested and charged with a DUI, the first thing you need to do is consult with an experienced Kansas DUI Defense Attorney. Only a seasoned DUI defense attorney will be able to advise you of your rights and provide you with aggressive representation. For more than 35 years, the Whitman Law Offices has been the trusted law firm for residents of Lawrence and Northeast Kansas who have been charged with DUI. To schedule your free and confidential consultation, call the Whitman Law Offices today at (785) 843-9460. Arrangements can also be made to have one of our attorneys visit you in jail. Remember, DUI cases require immediate action.

The Three Biggest Mistakes Motorists Make When Pulled Over for Suspicion of DUI

Thursday, May 8th, 2014

It is Friday night and you are driving home after an evening out with friends for dinner. It is late and you are tired, but all of a sudden you are very awake. Your heart is banging loudly in your chest as your brain quickly comprehends those flashing blue lights in your review view mirror. You are being pulled over. You try not to panic—but suddenly your mind is all aflutter. Were you speeding? Did you miss a light? You had a few glasses of wine with dinner—but now you are wondering if you drank too much. As you watch the officer approach your car, all you can think is—what should I do? Just as important as what to do is what not to do. The following are a list of the most common mistakes drivers make when they are pulled over on suspicion of DUI:

  • Try to talk your way out of it: It is natural for people especially when they are nervous to become very chatty. Some people think when they are pulled over on suspicion of DUI that they can somehow just explain everything away. Police officers are not dumb and cannot be sweet talked out of charging you with a DUI. One of the biggest mistakes driver’s make when an officer suspects the person of driving under the influence is to talk. While admitting to an officer that you have consumed alcohol earlier in the evening is not a crime, it does give the officer reason to ask more questions. If the officer begins to ask questions related to your consumption, remember you have the right to refuse to answer the officer’s questions. You can simply respond, by saying “I choose not to respond”. Do not lie. However, by  volunteering information you are only helping the officer build his or her DUI case against you.
  • Think if you cooperate all will be okay: Another approach motorists often mistakenly take when pulled over for DUI is to think that if they just cooperate that all will be okay. At the traffic stop when the officer requests your license and registration, you need to hand these documents to him or her. If the officer requests that you step out of the vehicle, you need to do this as well. However, if the officer asks you to complete a road side field sobriety test, you do not have to engage in this activity. Completion of a field sobriety can in most cases only increase your chances of being charged with a DUI not decrease it. These tests are very difficult for even sober individuals to pass.
  • Become rude, attitudinal, or disrespectful towards the officer:  At no time while your vehicle is pulled over should you show any disrespect or be rude to the officer. Now this does not mean that you have to do everything the officer requests (i.e. field sobriety tests), but it does mean that you should decline politely. You will not win any points with the officer by being attitudinal or rude.

Driving under the influence or DUI is an offense that needs to be taken seriously. Only a skilled Kansas DUI Defense Attorney can thoroughly review your case to make certain that all of your defenses are presented. If you have been charged with DUI, call The Whitman Law Offices today at (785) 843-9460 to schedule your free and confidential consultation. For almost four decades, attorney Charles E. Whitman has represented persons charged with DUI. Trust the Whitman Law Offices to provide you with aggressive representation both in and out of the courtroom.

Kansas BUI Defense Attorney Answers Your Questions about Kansas “BUI” Charges

Friday, May 2nd, 2014

In the United States, the first day of summer is marked by the summer solstice which this year happens to be on June 21st. While this may be the “official” start of summer, many Americans would argue that Memorial Day weekend is the true start to the season. This three day weekend has many Kansas residents headed to their favorite camping spots or summer cabins—many with boats in tow of course. And who can blame them—it is hard to beat cruising the lake on a pontoon boat leisurely taking in the sites and the sunshine. However, as much fun as boating can be—it can also be dangerous. In 2012, there were 27 boating accidents in Kansas which resulted in two deaths and injuries to 13 others. Drinking while boating can greatly increase the likelihood of being involved in an accident. If you love to boat, make sure that you are aware of the laws regarding boating under the influence, or “BUI”.  The following are some of the most frequently asked questions regarding BUI:

  1. What is BUI? BUI stands for boating under the influence of alcohol or drugs. Just like a DUI that occurs on the roadways, it is also illegal to operate a boat or personal watercraft while intoxicated. A person can be arrested for BUI if he or she has a blood alcohol concentration (BAC) of .08 percent or higher. Persons under the age of 21 are considered to be legally intoxicated with a BAC of .02% or higher.
  2. Is it against the law to consume alcohol on a boat? No, in Kansas it is perfectly legal to consume alcohol while on a boat. However, it is illegal to be impaired while boating.
  3. Can a boat owner/operator avoid a BUI by having his or her child ‘drive’ the boat? The answer to this question is it that is depends on the age and skill of the child. An intoxicated boat owner/operator who allows a child under the age of 12 to ‘drive’ the boat can be charged with BUI. The same is true if the child is born after January 1, 1989 but has not completed a boater safety course. A boat owner can also find him or herself in hot water for allowing a person who is intoxicated to operate his or her boat. To avoid any problems, always designated a sober ‘seasoned’ boater to operate your boat.
  4. What are the penalties for BUI? BUI penalties in Kansas can include fines, jail time and loss of boating privileges.
  5. If I get a BUI, do I need a Kansas BUI Defense Attorney? While there is no legal requirement to hire an attorney, it is nonetheless important to have one. Specifically, getting a Kansas BUI can be just as serious as being charged with a DUI, and that is why having competent legal counsel by your side is critical. A Kansas BUI Defense Attorney can help to mitigate your charges, if not have them completely dropped. Accordingly, their skill, knowledge, and experience is vital, and can make the difference between jail time and your freedom.

Remember that while consuming alcohol on a boat may seem like a lot more fun than when consumed on shore it also can be more hazardous. It is estimated that a person consuming alcohol becomes intoxicated three times faster while on the water as opposed to while on dry land. There are many individual factors that can contribute to how quickly a person can become intoxicated—but there are also external elements that play a part as well. For example, sun, glare, wind, and the motion of the waves can all cause a person to become intoxicated much faster.

If you have been arrested and charged with boating under the influence or BUI, you need to speak with an experienced Kansas BUI Defense Attorney as soon as possible. For more than 35 years, The Whitman Law Offices has provided the residents of Lawrence and Northeast Kansas with aggressive representation in alcohol-related offenses. Attorney Charles E. Whitman will take the time carefully evaluate your case and investigate any and all defenses. To schedule your free and completely confidential consultation, call The Whitman Law Offices today at (785) 843-9460. Arrangements can also be made to visit you in jail, so do not delay—contact us today.