Archive for September, 2015

Kansas DUI Defense Attorney Discusses Stricter Penalties for DUIs that Result in Physical Harm

Monday, September 28th, 2015

As of 2013 in Kansas, a person commits the crime of aggravated battery while driving under the influence if,

  • Great bodily harm to another person or disfigurement of another person results from driving under the influence; or
  • Bodily harm to another person results from driving under the influence with the possibility that the act may cause great bodily harm, disfigurement, or death.

This summer, Governor Brownback signed House Bill 2055 into law which created harsher penalties for those who commit an aggravated battery DUI, or cause great bodily harm to someone while driving under the influence of alcohol and/or drugs. The new law is also known as “Mija’s Law.”

Tragically, Mija Stockman was a victim of a collision involving a drunk driver. In December 2013, Ms. Stockman sustained a traumatic brain injury in an accident with Jeffery Davis, who at the time of the accident had a blood alcohol level more than twice the legal limit. Mr. Davis was convicted of aggravated battery while driving under the influence. It was the third time he had been convicted of driving under the influence. The judge ordered Davis to serve thirty four months in prison, but Kansas law also permitted the judge to place him on probation. Thus, while Mr. Davis only has to serve less than three years in prison, Ms. Stockman faces a lifetime of rehabilitation.

Mija’s Law created a special rule for determining a person’s criminal history for a conviction of aggravated battery while driving under the influence. The rule considers past DUI and DUI refusal offenses as felonies for sentencing purposes for DUI accidents that cause great physical harm or disfigurement to another person. The law also increases the severity classification of aggravated battery DUI that results in great bodily harm to a Level 4 person felony. This classification ensures that aggravated battery DUI offenders in Kansas are not eligible for probation.   The sentencing range has also been increased to 38 months to 172 months. The hope for the stricter penalties is that there will be a reduction in DUI accidents that cause severe and permanent bodily harm or disabilities.

Any driving under the influence charge should not be taken lightly. A DUI conviction can mean large fines, jail time, and can affect your ability to obtain and keep a job. Repeat DUI convictions, and DUIs that cause great bodily harm to another person carry even harsher penalties, including longer jail sentences, and ineligibility for probation. If you have been arrested and charged with driving under the influence, or aggravated battery driving under the influence, be sure you consult with a seasoned Kansas DUI Defense Attorney as soon as possible. Kansas DUI Defense Attorney Charles E. Whitman has more than thirty five years of criminal defense experience and is ready to help you fight your charge of driving under the influence. Call The Whitman Law Offices today at (785) 843-9460 or toll free at (877) 933-4543 to schedule your free and confidential consultation.

The Right to Consult A Kansas DUI Defense Attorney Under The Implied Consent Law

Friday, September 25th, 2015

In Kansas, any person who operates a vehicle in the state automatically gives consent to allow one or more tests of their blood, breath, urine, or other bodily substance to determine the presence of alcohol or drugs.  This law is also known as the Implied Consent Law.  The law also provides that the person must be given certain notices before a law enforcement officer administers such a test.

The notices include an advisement that “there is no constitutional right to consult with an attorney regarding whether to submit to testing.”  They must further state 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.”  In other words, a person has the right to consult with an attorney after they submit to a test that determines the presence of alcohol or drugs.

Before July of this year, it was unclear whether this post-testing right to counsel had to be invoked prior to the test or after test.  In Dumler v. Kansas Dept. of Revenue, the Kansas Supreme Court considered the issue of when a person must invoke this statutory right to counsel.  The Court held that a person has the right to request that he or she be allowed to consult with an attorney either before testing or after testing.  However, even though one may request to consult with an attorney prior to the test, they may not actually speak with an attorney until after the test is completed.  A person has no right to consult with counsel before deciding whether to take the requested alcohol testing.  The ruling by the Court only clarifies that if a person requests consultation with an attorney prior to the test, they do not have to again invoke the right after testing.

It is important to note that the Court also held that the implied consent advisory does not restrict the subject matter of a person’s attorney consultation, and certainly does not restrict the subject matter to a discussion of whether a person should undergo further testing.  Instead, the advisory provides that the person has the right to consult with an attorney and they may secure additional testing.  While consulting with an attorney about additional testing could be a good reason to exercise the right to counsel, the right is not conditioned upon a discussion of further testing.

If you have been arrested for driving under the influence and you must undergo testing at the police station, be sure to know your rights.  You are entitled to consult with an experienced Kansas DUI Defense Attorney after you complete the testing, but you may invoke this right either before and/or after the testing is administered.  With more than thirty five years of criminal defense experience, Charles E. Whitman is ready to help you fight your DUI charge.  Call The Whitman Law Offices today at (785) 843-9460 or toll free at (877) 933-4543 to schedule your free and confidential case evaluation.