Mandatory Hold Deemed Unlawful

Mandatory Hold Deemed Unlawful

Posted By Kansas DUI Attorney - Jerry Wallentine || 8-Feb-2013

The Kansas Court of Appeals ruled that section 9 of the Kansas Constitution Bill of Rights ensures that individuals charged with drunk driving are allowed to post bail. This was decided in State of Kansas v. Rickerson. However, some law enforcement agencies have enforced minimum detention policies for drivers charged with driving under the influence. Such flagrant disregard for the law can now lead to a DUI charge being dismissed, even if the defendant is unable to show how the action prejudiced them.

Before holding the suspect, the arresting DUI officer is supposed to make an individualized determination whether the driver is intoxicated and would be a danger to self or others if released on bond violate. Otherwise, it violates the Kansas Constitution. The problem is, the mandatory hold policies were not based on a case by case situation, but rather enforced across the board.

If a defendant's lawyer seeks the dismissal of their DUI charge, due to an unlawful detention under a mandatory-minimum detention policy, the dismissal of the charge should be granted if: (1) the defendant was not a safety threat and the defendant can show actual prejudice, by showing that the detention substantially impeded their defense; or (2) even if there was no prejudice, law enforcement has shown institutional noncompliance and systematic disregard for the law, such that the unlawful policy is followed even though a prior court decision disapproved the actions.

As a KS DUI defense attorney, this is a great case to rely on. However, it may potentially be used for numerous different criminal charges, in cases where law enforcement completely ignored the law to do what they wanted during the investigation.

Categories: DUI, Traffic