Obviously the prior convictions for DUI. There is an aggravating factor if there is a child in the car. It requires an additional jail term. There is an aggravating factor if the driver’s license of the person is suspended for a prior DUI. It requires an additional minimum of ninety days in jail, of course, this is just circumstances of the case. To the extent that it becomes known to the judge, the judge has the discretion between, in a first time DUI, between no time in jail and six months in jail. To the extent, it becomes known to the judge as to what the person was doing and how they were reacting. Were they involved in an accident? Did anybody get hurt? Was there serious property damage?

Certainly, people’s attitudes play into part towards DUIs and the seriousness of the offense. That all plays into whether judges put people in jail for no time, or whether they put them in jail for a year. The level of a person must understand the fact that this is a serious matter, and that they cannot continue to drink. It really becomes almost a no drinking issue, because when people drink they lose their judgment about whether they should drive or not. As I tell people, I am pretty good when I drink. I am pretty good at counting to three, but after that, I just lose the ability to count. So I might think that I only had four and I might have had ten. There is something in our brain that loses our ability to count, and when we lose our ability to count we lose our ability to have good judgment about a lot of other things.

People who understand that if they find themselves handcuffed and thrown in the back of a police car, they understand that they may have a problem, that goes a long way with judges to let the judge give them some leniency. To the extent that people believe that I have an absolute constitutional right to drink, being I am a United States citizen and I like drinking that does not go so far with judges.


Kansas found their refusal statutes to be unconstitutional. At this point in time, that issue is currently being reviewed by the United States Supreme Court, and oral arguments took place some time ago. We are waiting on a decision from the United States Supreme Court whether you can be criminally sanctioned simply for refusing. However, for purposes of whether or not a person is going to be able to drive a vehicle, there are penalties for refusing. They will take the driver’s license, and the length of time in which a person has a suspension or a requirement for an ignition interlock device put in will be longer, I guess we could call it substantially longer, then if they actually took the test.


Diversion is the only alternative. There are limitations in Kansas on prosecutors dismissing DUIs. There is actually a statute that says that a prosecutor is not able to, and it is a crime in and of itself for a prosecutor to dismiss a DUI without “just cause”. So any time a DUI is dismissed the prosecutor has to be prepared to justify that to the attorney general’s office as to why that case was dismissed. Back in the day thirty years ago when I prosecuted, if I wanted to dismiss a DUI because I thought it was the right thing to do, I just dismissed it and nobody said anything about it, and nobody could do anything about it. Now not so much.


I am a member of the National College for DUI defense, which requires me to continue to get continuing education credits regarding DUIs. I have read the books, cases, and I understand the physiology, anatomy, engineering, and in those areas in which I am not familiar with, I consult with experts in the area of physiology, anatomy, and the engineering behind DUI testing, to be able to determine whether or not this particular test should be considered a reliable indication of what a person’s blood alcohol content was. The fact that I do it a lot. Just because you do something a lot, you can do something a lot worse, but I do it a lot and I have some good success in representing clients in these kinds of cases.


People should plan ahead when they are going to drink. I am fifty-something, and in my generation, we never thought about having designated drivers, but that is a good thing that I have seen in younger generations, that they have dedicated themselves to have a designated driver. The other thing that I highly suggest for people is that they invest in and have enough humility to use a personal breath analyzer. I know Brookstone and Sharper Image both sell a device that can be put on any smartphone, and it will tell people what their breath analysis is. They are like $100 to $150.

That is a good investment if people will use it. Have enough humility to just give somebody else the keys, because it is not worth paying the lawyer, and it is not worth the heartache that it will take on the family, and the economic cost to have to hire an attorney. The best defense is not to be put in that position in the first place, and it is something that we can all avoid.

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