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House Criminalizes Breath Refusals

Kansas DUI Attorney — Fri, 18 May 2012 13:55:00 GMT

Despite legitimate concerns about trampling on the People's Constitutional rights, the House, in Topeka, approved a bill which criminalizes refusing to take a breath test during a DUI investigation. The House passed the bill 103-13. It is not yet law as the Senate still must approve it. However, the Senate is expected to pass it today, unless they remember the value of our Constitution.

Apparently, the bill, Senate Bill 60, criminalizes the refusal if the person who refuses had a prior DUI conviction or refusal. It would be a misdemeanor, carrying jail time. It will be interesting to see whether a prior diversion will count as a conviction. I suspect it will, given how the current statutes read on drunk driving diversions.

Prior to passing this in the House, there was debate on the Constitutionality. "These are American citizens and they have the right to remain silent, which this bill sort of tramples on, because if you just stand there silent … then you're a criminal," Gatewood said. "You have your 4th and 5th Amendment rights … and I just think there is no greater ridge to stand on than the Constitution of the United States." Gatewood proposed to send the measure back to a House-Senate conference committee for further work, but that motion died on a 23-88 vote.

Others didn't seem to think the Constituion should apply to DUI. "This is not about constitutional rights," said Rep. Bill Otto, R-LeRoy. "What about the constitutional right to life, liberty and the pursuit of happiness? (a phrase from the Declaration of Independence, not the Constitution) When you're killed by a drunk driver, they've deprived you of your life. Death penalty, when you did nothing wrong."

Others argued that the new DUI bill would help unclog the system. Rep. Pat Colloton, R-Leawood, said courts are being clogged with repeat offenders who refuse the DUI test and take their chances with a jury. "The district attorney and county attorney association said the No. 1 use of their attorneys for jury trials were on DUI refusals," Colloton said. "It was using a tremendous amount of manpower throughout the state for jury trials on those people who had multiple convictions for DUI and were smart in refusing to have a DUI test." What she doesn't understand is, this new law will likely cause much greater clogging in the system. Now that it's a crime to refuse, there will be many more cases in the court over that very issue.

This bill will allow first-time DUI offenders and those whose licenses are suspended for other reasons to use small motor scooters as an alternative since they are unable to drive a regular vehicle. They will be allowed to drive motorized bicycles. The definition of a motorized bicycle includes mopeds and scooters of less than 50 cubic centimeters of engine displacement, less than 3.5 horsepower and automatic shifting.

As a DUI defense lawyer, I look forward to reviewing and researching this new law. Every year, it seems that the drunk driving laws in Kansas are adjusted, always making it a challenge for the DUI attorney to stay on top of their game.

Is the Kansas Blood Alcohol Program Incorrectly Certifying Breathalyzers?

Kansas DUI Attorney — Tue, 08 May 2012 13:42:00 GMT

According to Kansas Administrative Regulations (K.A.R.) 28-32-0 (b)(5) "For quality control, each device custodian or device custodian's designee shall test each EBAT device once each calendar week using the alcohol standards furnished by the department. The agency custodian shall report the test results to the department monthly on forms provided." The KAR is setting it's own rules in that section, presumably to ensure fair due process to suspects and defendants accused of DUI. If the machine isn't properly maintained and checked for quality control, any results from that machine should arguably be suppressed. Furthermore, the police station or agency in charge of the machine should have the Intoxilyzer 8000's certification taken away as the KAR says "(f) Certificate suspension or revocation. The failure to comply with this regulation may be grounds for suspension or revocation of the agency's certification." In Kansas, we are finding tha6t some machines have in fact not been maintained correctly and that quality checks have not routinely been performed. Yet, the Blood Alcohol Program in charge of certifying the machines has not used their discretion to remove the certification! According to Christine Houston, the supervisor of Kansas's BAP, she didn't want to punish the agency for one person's mistake. I guess the rights of DUI suspects and those accused of drunk driving simply don't matter. Unbelievable!

As a drunk driving defense lawyer, I recently finished a DUI trial where the Kansas BAP was involved. Amanda Thurman from the Kansas Blood Alcohol program testified on behalf of the government and did everything she could to validate the breathalyzer, despite issues with the machine. As a criminal defense attorney, I did not feel that they were a neutral facilitator, but rather just another part of the prosecuting team.

Shadden Case Explains Why Expert Needed to Present Scientific Evidence

Kansas DUI Attorney — Mon, 23 Apr 2012 13:28:00 GMT

Currently, lawyers are not allowed to present HGN test results during a DUI trial in Kansas. However, the attorenys are allowed to present such evidence for purposes of determining probable cause. The following case explains why some scientific evidence, like the HGN, is not allowed before a jury, without an expert to lay foundation. In order to introduce such evidence, it must be shown to be scientifically reliable. However, for more specific reference to the HGN, one should read the Witte case.

No. 97,457

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

RICHARD SHADDEN,

Appellant.

SYLLABUS BY THE COURT

1. Under Kansas authority, it is prohibited to introduce evidence regarding field sobriety tests that is beyond the common knowledge of lay persons, unless that evidence is shown to be reliable under the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), test.

2. Referring to field sobriety exercises as tests is not improper.

3. The correlation between a driver's inability to perform psychomotor field sobriety tests and that driver's inability to safely operate a motor vehicle is within the average juror's common experiences and understanding.

4. According to standards promulgated by the National Highway Traffic Safety Administration (NHTSA), a driver who exhibits two of the clues indicating intoxication has a 68% likelihood of having at least a .10 blood-alcohol concentration. However, the NHTSA standards, which were testified to and which the defense objected to, were not established as scientifically reliable and were, therefore, inadmissable.

5. Under the facts of this case, we cannot say the admission of the NHTSA evidence over objection was harmless error.

Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge. Opinion filed January 16, 2009. Reversed and remanded with directions.

Shawn E. Minihan, of Kansas Appellate Defender Office, for the appellant.

Steven J. Obermeier, assistant district attorney, Phill Kline, district attorney, and Stephen N. Six, attorney general, for the appellee.

Before STANDRIDGE, P.J., PIERRON and GREEN, JJ.

PIERRON, J.: Richard Dale Shadden appeals his conviction and sentence for driving under the influence of alcohol (DUI). Shadden challenges several rulings by the district court and alleges prosecutorial misconduct. We find the admission of the testimony by an arresting officer that there was a 68% likelihood that Shadden was under the influence to an unlawful degree was scientific opinion that was not properly supported by expert testimony. We reverse and remand with directions.

On December 27, 2005, Officers Nick Weiler and Shannon Goodnight received a citizen complaint. Following the directions and descriptions of the reporting citizens, the officers located a truck loaded with pallets in the Town Center parking lot in Merriam, Kansas. As the officers observed the truck, the driver went through a stop sign, causing another vehicle to stop quickly to avoid an accident. The officers pulled behind the truck as it waited for a signal light at Antioch Road and activated the emergency lights after the truck had passed through the intersection. The truck turned onto a side street and stopped in the middle of the lane of traffic close to the intersection. The officers pulled up directly behind the truck.

Weiler approached the driver, later identified as Shadden, and asked for his driver's license and proof of insurance. Shadden was unable to provide a license or proof of insurance, but he provided the automobile registration. Weiler detected a strong odor of alcohol from Shadden and requested Shadden to step out of the vehicle. The smell of alcohol persisted after Shadden emerged from the vehicle. Shadden slurred some of his words and had difficulty communicating, frequently pausing and asking Weiler to repeat his questions. Shadden's eyes were bloodshot and watery and his face appeared flushed.

Weiler asked Shadden to perform some field sobriety tests and directed him to the rear of the truck. Shadden swayed as he walked. Because Weiler was required to pull his car close to the truck, the space between the vehicles did not accommodate the tests. Therefore, Weiler conducted the tests next to the vehicles, and the patrol car's video camera was unable to record Shadden's performance.

Weiler requested that Shadden perform the walk-and-turn test, and, after Weiler instructed Shadden and demonstrated the test, Shadden attempted to perform the test. Because the street provided no actual line, Weiler advised Shadden to imagine a line for purposes of the field sobriety test. Based on standards promulgated by the National Highway Traffic Safety Administration (NHTSA), Weiler was trained to look for eight possible clues of intoxication based upon an individual's performance of the walk-and-turn test. If an individual demonstrates two or more clues, the individual is deemed to have failed the test.

As Shadden performed the test, Weiler noted that Shadden failed to maintain balance during the instructions and began the test before Weiler had instructed him to begin. During the first nine steps, Shadden stopped once, stepped sideways once, raised his arms twice, and failed to place the heel of one foot against the toe of the other foot on four occasions. When turning, Shadden stepped outside the acceptable range of motion. On the final nine steps, Shadden stopped twice, stepped sideways twice, raised his arms five times, and failed to place his heel against his toe five times. Because of these errors, Weiler claimed he identified all eight clues of intoxication.

Weiler had planned to conduct the one-leg stand test, but, because of the grade of the street, he opted not to conduct this test. Goodnight then conducted three nonstandardized sobriety tests: the alphabet test, a counting test, and the finger-to-nose test. Shadden was unable to recite the alphabet from A to Z without mistake. Shadden counted to 15 correctly but repeated a few numbers when counting back down to 1. In six attempts, Shadden failed to touch his nose correctly during the finger-to-nose test.

Weiler arrested Shadden for DUI. At the police station, Weiler provided Shadden with the implied consent advisory form (DC-27), which included a warning that a test refusal may be used against the individual in a trial for DUI. Weiler then requested that Shadden submit to a breath test on the Intoxilyzer 5000. Shadden refused the test. Weiler read Shadden his Miranda warnings, and Shadden waived his rights and spoke with Weiler. Weiler asked how much Shadden had to drink that evening, and Shadden not only informed Weiler he had consumed 3-4 beers, he also stated he had smoked marijuana.

The State charged Shadden with operating or attempting to operate a vehicle while under the influence of alcohol to an extent that it rendered him incapable of safely driving a vehicle, in violation of K.S.A. 2005 Supp. 8-1567(a)(3). Following a 2-day trial, a jury found Shadden guilty of DUI. For purposes of sentencing, the district court found that Shadden had three prior DUI convictions. The court imposed a sentence of 1 year in jail and a fine of $2,500. The court also imposed court costs, BIDS attorney fees, and a requirement of 12 months of substance abuse treatment upon release from jail.

Prior to trial, Shadden filed a motion in limine seeking to exclude any testimony referring to the field sobriety exercises as "tests," indicating that he had failed such exercises, or lending scientific credibility to the results of the exercises. At the hearing regarding the motion, the district court denied the request without much discussion. On appeal, Shadden contends the court's ruling on this issue was erroneous.

Appellate review of a district court's decision concerning a motion in limine has traditionally been limited to determining whether judicial discretion has been abused. State v. Oliver, 280 Kan. 681, 693, 124 P.3d 493 (2005), cert. denied 547 U.S. 1183 (2006). However, since a motion in limine involves the admission or exclusion of evidence, our review of the district court's exercise of discretion must necessarily be framed by our standard of review regarding the admission of evidence.

When reviewing a district court's decision to admit or exclude evidence, an appellate court first determines whether the evidence is relevant. Relevant evidence is "evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). An appellate court has unlimited review over questions of the materiality of evidence, but a district court's decision regarding the probative value of the evidence is reviewed for an abuse of discretion. State v. Reid, 286 Kan. 494, 503-09, 186 P.3d 713 (2008). Once relevance is established, appellate review regarding an evidentiary ruling depends upon the contours of the evidentiary rules governing admission and exclusion of evidence. When the legal basis for the admission or exclusion of evidence is challenged, an appellate court possesses unlimited review. See 286 Kan. at 503. Even if evidence is admissible under the pertinent evidentiary rules, a district court must determine whether the evidence is unduly prejudicial, a determination that is subject to the abuse of discretion standard of review. 286 Kan. at 512.

Shadden does not challenge the relevance of the field sobriety tests administered in this case. Clearly, a driver's performance on tests designed to gauge sobriety are relevant to determining whether the driver was capable of safely driving a vehicle. Shadden concedes that officer testimony related to his performance on the tests was admissible; however, he argues that testimony regarding the results of the tests, i.e., whether he passed or failed the tests, or reference to the tests, was unfairly prejudicial.

As the State notes, Kansas courts have consistently referred to field sobriety exercises as "tests" and have described an individual's performances on such tests as "passing" or "failing." See, e.g., State v. Stevens, 285 Kan. 307, 319, 172 P.3d 570 (2007) (finding DUI conviction was supported by evidence that defendant "was unable to satisfactorily complete the field sobriety tests"); Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 765, 148 P.3d 538 (2006) (noting that Bruch technically passed the field sobriety tests); State v. Martinez, 268 Kan. 21, 24, 988 P.2d 735 (1999) (discussing Martinez' failure on the field sobriety tests); State v. Neuman, 266 Kan. 319, 320, 970 P.2d 988 (1998) ("Field sobriety tests were administered and defendant failed the tests. He also failed a breath test."); City of Dodge City v. Norton, 262 Kan. 199, 204-05, 936 P.2d 1356 (1997) (discussing the validity of a field sobriety test as a clue to physical impairment); State v. Shaw, 37 Kan. App. 2d 485, 487, 154 P.3d 524, rev. denied 284 Kan. 950 (2007) (summarizing officer's testimony that Shaw failed the walk-and-turn test by exhibiting four of eight clues); City of Dodge City v. Ingram, 33 Kan. App. 2d 829, 831, 109 P.3d 1272 (2005) (discussing Ingram's failure on the alphabet test, the walk-and-turn test, and the one-legged balance test).

However, none of the cited cases specifically addressed the issue raised by Shadden in this appeal. Shadden's argument rests primarily upon a decision by a Florida District Court of Appeal, State v. Meador, 674 So. 2d 826 (Fla. Dist. App. 1996).

In Meador, the State appealed the suppression of all evidence related to Meador's performance of field sobriety tests. The Meador court initially distinguished between psychomotor field sobriety tests, which involved observations of a driver's attempts to perform certain tasks, and horizontal gaze nystagmus (HGN) tests, which involved observations of a physiological phenomenon associated with intoxication. We note below that Kansas does not allow the introduction of the HGN test results to prove intoxication. Citing State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992), with approval, the Meador court noted that the HGN test required expert testimony to establish its probative value because an officer could relate his or her observations about a driver's physiological condition but the correlation between the condition and alcohol impairment is premised upon scientific principles. 674 So. 2d at 834. In contrast, the correlation between a driver's inability to perform psychomotor field sobriety tests and that driver's inability to operate safely a motor vehicle is within the average juror's common experiences and understanding. 674 So. 2d at 831. Therefore, while expert testimony that satisfies the standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), must be admitted to establish a driver's performance of the HGN test, lay testimony is satisfactory for psychomotor field sobriety tests.

However, the Meador court limited the admissibility of psychomotor field sobriety tests to the officer's observations of the driver's performance during the tests.

"While the psychomotor tests are admissible, we agree with defendants that any attempt to attach significance to defendants' performance on these exercises beyond that attributable to any of the other observations of a defendant's conduct at the time of the arrest could be misleading to the jury and thus tip the scales so that the danger of unfair prejudice would outweigh its probative value. The likelihood of unfair prejudice does not outweigh the probative value as long as the witnesses simply describe their observations. [Citation omitted.]

"Reference to the exercises by using terms such as 'test,' 'pass,' 'fail,' or 'points,' however, creates a potential for enhancing the significance of the observations in relationship to the ultimate determination of impairment, as such terms give these layperson observations an aura of scientific validity. [Citations omitted.] Therefore, such terms should be avoided to minimize the danger that the jury will attach greater significance to the results of the field sobriety exercises than to other lay observations of impairment." 674 So. 2d at 832-33.

Though the Meador decision implies that the use of "test," "pass," "fail," or "points" with reference to field sobriety tests causes prejudice to a criminal defendant, the context of the court's reasoning suggests that the prejudice lies not in semantics but in any purported scientific or mathematical correlation between a driver's performance during field sobriety tests and a certain level of intoxication. See United States v. Horn, 185 F. Supp. 2d 530, 558-60 (D. Md. 2002) (adopting the Meador reasoning to limit the type of testimony concerning a driver's performance on a field sobriety test the State may elicit because it lends undeserved scientific credibility to an officer's testimony).

The issue raised by Shadden and addressed by the Florida court is one of first impression in this jurisdiction. Extensive research has revealed only three Kansas cases involving the admissibility of field sobriety tests: State v. Chastain, 265 Kan. 16, 960 P.2d 756 (1998); State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992); and State v. McHenry, No. 93,872, unpublished opinion filed June 30, 2006. Although none of the cases directly address the issue presented in this appeal, two of the cases provide some guidance about the manner in which Kansas courts have previously addressed challenges to testimony by officers who have conducted field sobriety tests.

In Witte, the Kansas Supreme Court provided an extensive analysis of the positions other jurisdictions had taken with respect to the admission of HGN test results. The court first considered whether the HGN test results involved scientific evidence requiring expert testimony that qualified under Frye. Witte, 251 Kan. at 318-22. The Witte court summarized the reasons other jurisdictions had concluded that the HGN test was scientific in nature in the following manner:

"These courts have given various reasons for holding that HGN evidence is scientific in nature: The HGN test is distinguished from other field sobriety tests in that science, rather than common knowledge, provides the legitimacy for HGN testing. [Citations omitted.] Certain reactions to alcohol are so common that judicial notice will be taken of them; however, HGN testing does not fall into this category. [Citation omitted.] HGN test results are 'scientific evidence based on the scientific principle that consumption of alcohol causes the type of nystagmus measured by the HGN test.' [Citation omitted.] HGN evidence could have a disproportionate impact on the jury's decision making process because of the test's scientific nature and because the jury may not understand the nature of the test or the methodology of its procedure. [Citations omitted.]" 251 Kan. at 321.

The court then concluded,

"Alcohol's effect on a person's sense of balance is common knowledge. The same cannot be said for HGN. The HGN test is based upon scientific principles and exceeds common knowledge. We hold that the HGN test results are scientific evidence. As such, the Frye foundation requirements for admissibility must be satisfied." 251 Kan. at 322.

After reviewing cases from multiple jurisdictions that have considered the admissibility of the HGN test, the Witte court ultimately concluded that the test results were not reliable enough to meet the requirements of Frye. Witte, 251 Kan. at 329-30. While Witte did not address the admissibility of other field sobriety tests, the decision implies that the results of field sobriety tests based upon common knowledge of the effects of alcohol, such as poor balance, would be admissible irrespective of Frye.

In McHenry, a panel of this court considered whether the 12-step drug recognition examiner (DRE) protocol required demonstration of reliability under Frye. The McHenry court specifically noted that the district court restricted the arresting officer's testimony to discussions of the kinds of symptoms different drugs produce and the symptoms the officer observed in McHenry. In rejecting McHenry's argument that the officer's testimony implied scientific evidence that was not demonstrably reliable under Frye, this court quoted Williams v. State, 710 So. 2d 24 (Fla. Dist. App. 1998), at length. In essence, the McHenry court concluded that the testimony of the officer who conducted the DRE protocol was admissible outside of Frye because the testimony related to physiological conditions within the common knowledge of the jurors.

"'Police officers and lay witnesses have long been permitted to testify as to their observations of a defendant's acts, conduct, and appearance, and also to give an opinion on the defendant's state of impairment based on those observations. [Citations omitted.] Objective observations based on observable signs and conditions are not classified as "scientific" and thus constitute admissible testimony.'" McHenry, slip op. at 17 (quoting Williams, 710 So. 2d at 28-29).

Implicit in Witte and McHenry is the prohibition against the admission of evidence regarding field sobriety tests that is beyond the common knowledge of lay persons, unless the evidence is shown to be reliable under Frye. In other jurisdictions, this prohibition has extended to the use for which field sobriety test results are admitted. Most jurisdictions that have considered the question have admitted field sobriety test results as circumstantial evidence of intoxication but have prohibited the use of such results to assert or imply a specific level of intoxication. See, e.g., Ballard v. State, 955 P.2d 931, 940 (Alaska App. 1998), overruled on other grounds State v. Coon, 974 P.2d 386 (Alaska 1999) (concluding that HGN test results are admissible as circumstantial evidence of intoxication but inadmissible to establish a particular blood-alcohol concentration [BAC] level); State v. Campoy, 214 Ariz. 132, 134-35, 149 P.3d 756 (Ariz. App. 2006) (same); People v. Rose, 268 Ill. App. 3d 174, 181, 643 N.E.2d 865 (1994) (distinguishing between the admission of field sobriety test results and preliminary breath test results because the breath test registered body chemistry rather than recording behavioral characteristics); Schmidt v. State, 816 N.E.2d 925, 946 (Ind. App. 2004) (suggesting that admission of evidence regarding statistical probability that an individual who failed a field sobriety test would have a BAC over .10 is improper in the State's case-in-chief); Wilson v. State, 124 Md. App. 543, 553, 723 A.2d 494 (1999) (permitting testimony regarding HGN test results but finding error when testimony included an opinion that Wilson was at or above .10 BAC); State v. Rose, 86 S.W.3d 90, 100 (Mo. App. 2002) (allowing evidence of HGN test results as circumstantial evidence of intoxication but not as evidence of a specific BAC level); State v. Baue, 258 Neb. 968, 985-87, 607 N.W.2d 191 (2000) (same); State v. Dahood, 148 N.H. 723, 734, 814 A.2d 159 (2002) (same); Brewer v. Ziegler, 743 N.W.2d 391, 400 (N.D. 2007) (admitting evidence of HGN test results as circumstantial evidence of intoxication but not as evidence of a specific BAC level); State v. Sullivan, 426 S.E.2d 766, 769 (S.C. 1993) (same); Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim.), cert. denied 513 U.S. 931 (1994) (same).

Nevertheless, not all courts have limited testimony regarding field sobriety tests as far as the Meador and Horn courts. In Campoy, the State appealed a district court's decision to prohibit the arresting officer from referring to "'sobriety,'" "'test,'" "'field sobriety test,'" "'impairment,'" "'pass,'" "'fail,'" or "'marginal'" in describing the driver's performance on field sobriety tests because such language added unwarranted scientific credibility to the State's evidence. 214 Ariz. at 134.

Reversing the district court, the Campoy court first noted that the results of field sobriety tests (FSTs) are admissible as evidence of a criminal defendant's general impairment but not admissible to establish a specific level of blood-alcohol concentration (BAC). 214 Ariz. at 134-35.

"Within this framework of admissibility, we find no support for the restrictions the respondent judge [Hector Campoy] imposed. Rather, it is clear Arizona law permits testimony about a defendant's performance on FSTs as long as no correlation is made between performance and BAC and no scientific validity is assigned to the tests themselves as accurate measures of BAC. FST performance has repeatedly been found to be relevant evidence of a defendant's impairment; thus, we disagree with the respondent's implicit conclusion to the contrary. [Citations omitted.]

"Moreover, the words the respondent precluded are pervasive throughout the case law concerning FSTs and have not been found, or even suggested to be, inadmissible. The danger our courts have attempted to guard against is using FST performance to estimate or quantify a specific BAC or level of impairment for prosecutions . . . in which the state must prove the defendant had a specific BAC. That danger is much attenuated in prosecutions . . . where the state need only prove impairment to the slightest degree--though we realize BAC is relevant to such prosecutions and reiterate FST performance is inadmissible to quantify BAC in all [DUI] prosecutions . . . .

"The respondent judge ordered the restrictions based on his finding there is no scientific correlation between impairment and performance on FSTs, a finding in turn based on expert testimony that several factors other than alcohol impairment can lead to a cue of impairment on an FST. Our supreme court has indicated, however, that expert testimony goes to the weight to be given FST evidence, not its admissibility or relevance at trial. [Citation omitted.] Furthermore, although we generally defer to a respondent judge's factual findings, the respondent's conclusion here is not supported by the evidence. [Citation omitted.] The mere self-evident fact that circumstances other than alcohol impairment can be responsible for cues of impairment on FSTs does not establish that such tests are necessarily uncorrelated with impairment. Indeed, our courts have repeatedly found FSTs are tests of impairment, albeit not definitive indicators of such, and police officers should be permitted to testify accordingly. [Citations omitted.] And the words at issue in this case do not in themselves suggest a scientific basis for the tests or lend the tests unwarranted scientific credibility. Rather, they make plain the tests' purpose as indicators of impairment and enable the state to demonstrate their probative value. Testimony that a defendant exhibited 'four cues of impairment' on a 'field sobriety test' does not improperly assert or imply the defendant has been scientifically proven to have been impaired. Rather, such testimony constitutes relevant evidence of a defendant's impairment, which jurors may consider and balance against evidence of the tests' limitations.

"Thus, the proper method for challenging FST deficiencies is testimony, such as that of [defendant] Cordova's expert at the pretrial hearing, calling these deficiencies to the attention of the jury and presenting evidence that cues of impairment were caused by something other than alcohol impairment. If, during trial, Cordova believes the state has attempted to assign unwarranted scientific credibility to the tests, e.g., the state has used their results to establish a specific BAC or as a definitive indicator of impairment, Cordova can object at that time. The respondent judge would then have the appropriate context in which to determine whether the state had improperly used the FST performance evidence.

"Additionally, permitting restrictions on vocabulary in DUI cases such as the respondent imposed here would open the door to creative wordsmithing and invite perpetual and unnecessary litigation. A considerable amount of time could be spent determining which words accurately describe FSTs and portray FST performance. Would a law enforcement officer be permitted to testify he or she had administered a 'field incapacitation examination'? And that the officer had detected two cues of 'deficient performance'? Without use of certain words, testimony could take an unnatural tone as witnesses attempt to sidestep prohibited terms. Such restrictions would place an unnecessary burden on both parties and would be transparent to the jury. [Citation omitted.]" 214 Ariz. at 135-36.

The reasoning of the Arizona court seems more persuasive than that of the Meador and Horn courts. The danger inherent in officer testimony that establishes a correlation between a driver's performance during a given field sobriety test and a specific level of intoxication is the possibility that the jury will give the test results undeserved weight as "scientific evidence" when the reliability of the test results has not been established under Frye. While a lack of balance and glassy eyes are commonly known indicators of intoxication, the correlation between test performance and a specific level of intoxication is not within the common knowledge of the average layperson.

In contrast, where officer testimony does not link test performance with a specific level of intoxication, the mere use of the term "test" or an indication by the officer that the defendant failed to perform the tests adequately and, therefore, "failed" the test does not lend scientific credibility to the test results. There is only a semantic difference between "field sobriety test" and "field sobriety exercise" or between "failing a test" and "being unable to perform an exercise adequately." An officer must be permitted to relate the activities a suspected drunk driver was asked to perform and to indicate that certain deficiencies in the performance of these activities indicated that the driver was intoxicated. A juror is not likely to mistake the purpose of a driver standing in the street on one foot while counting to 30 or walking heel-to-toe for 18 steps on a straight line after being stopped by a law enforcement officer. To this end, it is appropriate for the officer to testify that field sobriety tests were administered and that, based upon the officer's training and experience, the driver failed those tests. It is impermissible to take the additional step of equating a level of certainty or probability to the officer's opinion or to correlate a driver's performance with a specific BAC level.

In the present case, Officer Weiler's testimony went beyond an indication that Shadden attempted to perform certain field sobriety tests and demonstrated multiple clues of intoxication. Weiler also testified that, according to NHTSA standards, a driver who exhibits two clues during the walk-and-turn test has a 68% likelihood of having at least a .10 BAC. Weiler clearly was not qualified to testify about the reliability of the NHTSA standards, and no expert testimony was provided to qualify the NHTSA standards under Frye. Therefore, Shadden had no effective means of cross-examining the reliability of the NHTSA standards because Weiler was merely relating information promulgated by the NHTSA. The result is the officer's opinion that the criminal defendant is intoxicated is given an undeserved scientific credibility.

"Although [the officer] did not specifically state an opinion that [the defendant's] BAC would have registered at or above .10%, his testimony created a remarkable inference that such was the case, and we find that the admission of such testimony was an abuse of discretion. A BAC of .10% is not a prerequisite to convicting for DWI. [Citation omitted.] In fact, a jury is still free to conclude that a driver is intoxicated even if the driver's BAC is shown to be less than .10%. [Citation omitted.] 'Intoxication is a physical condition usually evidenced by unsteadiness on the feet, slurring of speech, lack of body coordination and an impairment of motor reflexes.' [Citation omitted.] Inasmuch as [State v. Hill, 865 S.W.2d 702 (Mo. App. 1993), overruled on other grounds State v. Carson, 941 S.W.2d 518 (Mo. 1997)], though the use of 'linguistic gymnastics' (as characterized by the appellant), suggests that an officer who testifies that, in the officer's experience, persons who score six points on the HGN test also register above .10% on the breathalyzer is not the same as testifying that the individual defendant has a particular blood alcohol content and is properly admissible, we think otherwise and hold that it is an abuse of discretion for a trial court to admit such testimony absent an adequate foundation which establishes the witness' ability to determine that a person's performance on the HGN test represents a BAC in excess of a certain level." Rose, 86 S.W.3d at 100-01.

Here, Shadden properly objected to this testimony. Although Missouri obviously admits evidence of the HGN test, whereas Kansas does not, the reasoning in Rose is analogous to the evidence presented in Shadden's trial. Officer Weiler's testimony went beyond recounting the tasks Shadden was asked to perform and Weiler's observations of Shadden's attempted performance. Weiler took the additional, impermissible step of implying a level of scientific certainty to the walk-and-turn test results. This was improper.

In Witte, the Kansas Supreme Court held that the erroneous admission of the HGN test results could not be held harmless because the later breath test results indicated that Witte possessed a BAC of .103 and the margin of error was unclear. 251 Kan. at 330-31. In the present case, Shadden refused to take a breath test, and the jury's conviction was based entirely upon the interpretation given Shadden's performance during the field sobriety tests. Due to the possibility that the jury placed undue weight upon the field sobriety test results, this court cannot conclude that the error was harmless. See State v. Murray, 285 Kan. 503, 535, 174 P.3d 407 (2008) (articulating the harmless error standard).

Therefore, we must reverse and remand for a new trial.

Although our rulings, if given effect, would make the following issues moot, due to the possibility of review we will address the other issues that appear to need resolution.

Shadden next contends that his trial was prejudiced by prosecutorial misconduct. Specifically, Shadden contends the State violated the district court's ruling prohibiting the officers from rendering their opinions regarding Shadden's intoxication.

In reviewing a claim that the State violated an order in limine, the appellate court applies a two-part standard of review that is indistinguishable from the review used to review a claim of prosecutorial misconduct, except a party must object to the inappropriate admission of evidence at trial in order to preserve the objection. See State v. Fewell, 286 Kan. 370, 391, 184 P.3d 903 (2008) (citing State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 [2003]); State v. Albright, 283 Kan. 418, 426, 153 P.3d 497 (2007) ("[W]hen a defendant alleges prejudice based on reviewing the district court's denial of a mistrial motion based on violations of an in limine order by the prosecutor, we have also employed a prosecutorial misconduct-type analysis to the extent it is helpful in determining whether there has been substantial prejudice.").

Where a claim of prosecutorial misconduct involves the improper elicitation of testimony rather than prejudicial remarks in closing argument, an appellate court must first consider whether the questions posed by the prosecutor were impermissible. In this case, the court must decide whether the State's questions violated the district court's order in limine. If so, the reviewing court then determines whether the misconduct constituted plain error. In applying the second prong of the test, the court must consider: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct exhibited ill will toward the defendant by the prosecutor; and (3) whether the misconduct may be deemed harmless in light of the evidence of guilt presented at trial. Where the first two factors weigh against the prosecutor, a reviewing court may find the misconduct harmless only when both the statutory and constitutional harmless error tests are satisfied. State v. Hunt, 285 Kan. 855, 871-72, 176 P.3d 183 (2008).

In the present case, the district court held a hearing on the issues raised in Shadden's motion in limine. In discussing Shadden's argument that the arresting officers should be prohibited from rendering an opinion regarding Shadden's impairment, the district court initially commented that the State should address the officers' opinions in terms of their reasons for arresting Shadden. The State then noted that City of Dodge City v. Hadley, 262 Kan. 234, 936 P.2d 1347 (1997), and State v. Carr, 230 Kan. 322, 634 P.2d 1104 (1981), overruled on other grounds State v. Cantrell, 234 Kan. 426, 673 P.2d 1147 (1983), specifically permitted law enforcement to provide opinion testimony concerning the state of intoxication of a criminal defendant. Defense counsel then conceded that the State could elicit testimony from the officers regarding their opinions that Shadden was intoxicated to a point that established probable cause to arrest. The district court then stated, "They reach their opinions based on conduct, field sobriety results, what have you, to arrest him, and to say that, 'Okay. Based on what we saw, what we observed, the results of these tests, we arrested him for DUI.'" After further discussion, the district judge added:

"And I suppose that it is really a question of how you frame your question. If you say, 'Based upon his conduct as well, did that cause you any pause as to whether he was under the influence at the time that you arrested him?' I think that you can reach the same result. But I think that it is a little bit less than just turning to the jury and saying, 'In my expert opinion he was under the influence, members of the jury,' period.

"It needs to be related to the jury in the context of what they were seeing and observing, 'Based upon the arrest of this individual, he was arrested for this behavior and conduct,' that that is why they arrested him. They can relate to that. But I think that everything in the way of their opinions needs to be related to the reasons why they arrested him."

When the State requested clarification of the court's ruling, the district judge added:

"My point simply is this . . . if you are simply going to put an officer on the stand and say, 'You observed him all that night?' 'Yeah, I did.' 'Do you have an opinion for the jury?'

. . . .

"It has to be--what I'm saying, it has to be in the context of what the officers did, why they arrested him . . . they needed to get him off the street, this is why they did it, this, this, this, and this.

. . . .

"I think that you can get in what you are trying to get in if you phrase your question correctly. I'm asking that, if you have any questions ahead of time, you can bounce those off the Court. If you don't want to, you don't have to.

. . . .

"But we may have to approach, we may have to do something outside the presence of the jury. I'm just anticipating that issue. I've had it come up in other cases and it is, I think, better practice for the State to have the officers give their opinions in relation to what they did. That is, they arrested the fellow, they detained him, gave him an Intoxilyzer, whatever they did, to explain what they are doing. That is all fair for the jury to hear and understand.

"But I think that when you just bring in an officer and say, 'Okay. You observed everything; do you have a[n] opinion for the jury?' period, that is a little bit different.

. . . .

"I may be anticipating a problem that won't come up, truthfully, based upon how the questions are presented. I'm just . . . giving you food for thought probably more than anything."

At trial, the State reviewed Weiler's observations of Shadden's performance during the traffic stop and subsequent field sobriety tests before eliciting Weiler's opinion whether Shadden was intoxicated. Although defense counsel objected three times that the State had failed to lay a sufficient foundation to qualify Weiler as an expert on DUI, the district court neither sustained nor overruled the objections, merely directing the State to ask Weiler why he arrested Shadden. The State then approached the question by asking Weiler why Shadden was arrested. When Weiler testified that Shadden was arrested for DUI, the State asked for the basis Weiler used to determine that Shadden had committed DUI and asked whether Weiler believed Shadden was intoxicated. Again, Shadden objected, but the district court overruled the objection.

Despite the ambiguity of the district court's ruling in response to Shadden's motion in limine, the State clearly attempted to comply with the district court's order that the State lay a foundation for Weiler's opinion that Shadden was intoxicated before eliciting that opinion. Contrary to Shadden's argument on appeal, the State did not violate the district court's order in limine regarding Weiler's opinion about Shadden's level of intoxication.

Moreover, even if the district court's ruling could be interpreted, as Shadden suggests, to prohibit opinion testimony regarding Shadden's intoxication, the district court's ruling was not erroneous. An officer who has observed a criminal defendant during a traffic stop may provide a lay opinion concerning whether the defendant was intoxicated at the time of the stop. See Hadley, 262 Kan. at 241-42. Consequently, any violation of the court's order in limine did not result in the erroneous admission of evidence that was unfairly prejudicial to Shadden and did not provide a basis for reversing his conviction of DUI.

The officer's testimony concerning the 68% likelihood that Shadden was under the influence, although reversible error in its admission, was not a violation of the motion in limine.

Shadden additionally contends that the district court improperly permitted the State to elicit testimony regarding Shadden's refusal to take a breath test in violation of Shadden's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Shadden acknowledges that he did not object to the admission of evidence on the grounds he raises in this appeal, but he argues that the issue should be considered for the first time on appeal because the issue involves a question of law on proved or admitted facts and because consideration of the issue is necessary to prevent the denial of fundamental rights.

Even constitutional grounds for appeal must be preserved by a timely and specific objection in the district court. Although an appellate court may reach questions of law that were not properly preserved if necessary to prevent the denial of fundamental rights, Shadden did not believe this issue was significant enough to raise in his motion in limine, in his motion for judgment of acquittal, or in any other manner. Therefore, this court may properly decline to consider the issue for the first time on appeal. State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006) (refusing to consider the voluntariness of statements to police for the first time on appeal).

Moreover, even if this court reached the merits of Shadden's claim, precedent of this court clearly establishes that the claim possesses no basis for the relief Shadden requests. See State v. Wahweotten, 36 Kan. App. 2d 568, 580-82, 143 P.3d 58 (2006), rev. denied 283 Kan. 933 (2007) (relying on Pennsylvania v. Muniz, 496 U.S. 582, 110 L. Ed. 2d 528, 110 S. Ct. 2638 [1990]; South Dakota v. Neville, 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916 [1983]). Admission of evidence regarding Shadden's breath test refusal did not violate Shadden's Fifth, Sixth, or Fourteenth Amendment rights.

In a related argument, Shadden further contends that the officers request that Shadden submit to a breath test created an unconstitutional condition by requiring Shadden to choose between a waiver of his Fourth Amendment rights in consenting to a breath test and a waiver of his Fifth Amendment rights by refusing to take the breath test.

Again, this issue was not raised before the district court and is not properly preserved for appellate review. See Alger, 282 Kan. at 304. In addition, because the request to submit to a breath test does not impinge upon an individual's freedom from self-incrimination, the request does not create an unconstitutional condition. See Wahweotten, 36 Kan. App. 2d at 583. Consequently, this argument also lacks merit.

With regard to the district court's imposition of Board of Indigents' Defense Services (BIDS) attorney fees, Shadden raises two issues. First, he contends that the imposition of any attorney fees under K.S.A. 22-4513 was error without first making findings on the record of his ability to pay such fees. Shadden then contends that the imposition of attorney fees in the journal entry was improper because the imposition of attorney fees was not announced at the sentencing hearing and, therefore, does not constitute an enforceable part of sentencing.

The State contends that any issue regarding the imposition of BIDS attorneys fees is moot because Shadden is no longer subject to the jurisdiction of the State. While the State refers the court to the Kansas Adult Supervision Population Electronic Repository (KASPER) to establish the fact that Shadden was released from State custody in December 2007, this information is not a part of the appellate record and cannot be considered by this court. See State v. Wright, 219 Kan. 808, 812, 549 P.2d 958 (1976).

The State accurately notes that at sentencing, on September 14, 2006, Shadden was given 262 days of jail time credit. Therefore, after sentencing Shadden was required to serve the remaining 103 days of his 1-year sentence. Shadden's sentence commenced on December 27, 2005. Shadden was assigned a 12-month postrelease supervision term. Therefore, Shadden should have been released from State custody on December 27, 2007, as the State alleges KASPER demonstrates.

Nevertheless, K.S.A. 22-4513(a) states: "If the defendant is convicted, all expenditures made by [BIDS] . . . shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases." While a district court is entitled to reduce or waive the amount of BIDS attorney fees the defendant is required to reimburse under K.S.A. 22-4513(b), the mandatory language of subsection (a) indicates that, unless the district court makes an affirmative finding and waives the fees, BIDS expenditures will become a civil judgment against the defendant. The State has not demonstrated that the BIDS attorney fees ordered by the court in the present case have not been imposed against Shadden as a civil judgment. Consequently, this court should not dismiss the issue as moot. See State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 454, 172 P.3d 1154 (2007) ("An appeal will not be dismissed for mootness unless it is clearly and convincingly shown that the actual controversy has ended and the only judgment that could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the case are concerned.").

In State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 (2006), the Kansas Supreme Court held: "A sentencing court assessing fees to reimburse [BIDS] under [K.S.A. 22-4513] must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose." The record is silent as to these considerations. Therefore, the BIDS attorney fees imposed pursuant to K.S.A. 22-4513 must be vacated.

In an attempt to prevent the case from returning to the district court, assuming the conviction stands, the State attempts to waive the imposition of attorney fees. However, as the State notes, the obligation to consider the defendant's financial ability to reimburse BIDS is not the State's but the district court's. K.S.A. 22-4513 is a recoupment statute designed to reimburse State funds expended in a criminal defense. Neither the prosecutor nor the district court possess discretion in the matter of imposing BIDS fees. The district court must order a criminal defendant who has been convicted of a crime to reimburse BIDS for its expenditures, unless the district court takes an affirmative act to waive such fees based on the defendant's financial condition and ability to reimburse BIDS.

While recognizing the frustration inherent in a remand on this issue, this court is bound by the plain language of K.S.A. 22-4513 and Robinson to remand the case for reconsideration, on the record, of the BIDS attorney fees imposed.

To the extent that remand under Robinson is necessary, Shadden's related argument–that the district court erred in imposing BIDS attorney fees in the journal entry when the fees were not imposed at sentencing–is moot. State v. Aleman, 16 Kan. App. 2d 784, 786, 830 P.2d 64, rev. denied 251 Kan. 940 (1992) ("An appellate court will not render opinions in appeals which present moot issues or where the judgment could have no practical effect on a then-existing controversy."). Even if the issue were not moot, Shadden's argument regarding the imposition of the BIDS attorney fees for the first time in the journal entry possesses no merit. See State v. Bale, 39 Kan. App. 2d 655, 664-65, 182 P.3d 1280, rev. denied 286 Kan. ___ (2008) (holding that K.S.A. 22-4513 is a recoupment statute, not a penalty statute, and a court may impose fees without pronouncing the fees at the sentencing hearing).

We reverse and remand with directions for a new trial.

END

Criminalizing Breath Refusals

Kansas DUI Attorney — Fri, 20 Apr 2012 13:58:00 GMT

On March 16, 2012, Kansas Senate Bill 453 was amended to make the refusal of a person to submit to a blood, breath or urine test at the demand of law enforcement a crime. By March 27, it had passed in the Senate and was on to the Kansas House for passage into law. With hardly any debate, virtually no public comment or hearing, and with little to no consideration of countervailing arguments the Kansas Legislature bent to the will of law enforcement and prosecutors and took another giant leap for big government and dealt another devastating blow to individual integrity, rights and liberty, at great expense to the taxpayer.

Criminalizing the refusal to submit to the testing of your body's fluids upon the demand of the constabulary is absolutely wrong for many reasons, but here are three easy and common sense reasons:

First, this law creating a new crime and a new class of criminals is unnecessary. People who refuse a breath, blood or urine test in a DUI already have that fact used against them at trial and prosecutors can argue that a refusal of a test is proof that the person knew he or she was guilty. People are convicted every day of DUI despite the lack of a breath or blood test. Refusing a test already results in stiffer suspensions and sanctions against a person's driver's license. This new law will do nothing to make the streets of Kansas safer. Making refusing a test a crime will do nothing to prevent people from drinking and driving. Once again, the legislature is attempting to treat the problem after the act has already occurred, as opposed to preventing it in the first place. We don't need a new crime for an old problem.

Second, the law overwhelming increases the odds that we make criminals of people who have done nothing wrong. A person who in good faith attempts to take a test but cannot complete it due to a medical condition like asthma or emphysema would be guilty of this crime. A person who was not able to urinate on command could be liable for this offense despite a desire to comply.

A person who is deaf or speaks a foreign language and is not able to understand what is being demanded of him or her will still be convicted of the crime of refusing even if he or she truly did not understand the ramifications of taking or refusing a test, or is unable to articulate his or her consent to a test. There are certain religions that prohibit or discourage consenting to procedures involving blood. For instance, Jehovah's Witnesses believe that "blood represents life and is sacred to God. It is reserved for only one special use, the atonement for sins." That is why Jehovah's Witnesses will not permit blood transfusions. A Jehovah's Witness who violates this prohibition is automatically disassociated from the church. Christian Scientists also have a prohibition on medical intervention in the body, including blood products or blood transfusion. Under the proposed law, persons who refuse a blood test due to a religious belief, even if they agreed to a breath or urine test in the alternative, would be guilty of a crime. This is unfair.

Third, in a time when Kansas has to shut its courts down due to a lack of funds and can't provide other basic services, we cannot afford these new criminals. This law requires mandatory incarceration of every person convicted of refusing a test. The conservative estimate for jailing all of these people, as estimated by Senator Jeff King, is 2 million additional dollars. There is no provision for funding this new crime, so where is that money going to come from? The law is unnecessary, expensive and is an expansion of big governmental power at the expense of the individual citizens of Kansas.

In America, liberty should be the rule and governmental power the exception. The citizens of Kansas should urge Governor Sam Brownback not to sign this into law.

Physics Used to Beat a Stop Sign Ticket

Kansas DUI Attorney — Wed, 18 Apr 2012 13:24:00 GMT

University of California at San Diego physics professor, Dmitri Krioukov, was issued a $400 traffic ticket for failing to stop at a stop sign. Unlike most traffic tickets though, he beat it at trial. How? He wrote a four page explanation to the judge that the officer was easily confused by the angle of speed of this hypothetical object that appeared to fail at the stop sign. Using his understanding of linear and angular motion, Krioukov explained that what the officer thought he saw, "did not properly reflect reality." The judge dismissed the traffic ticket.

The judge probably appreciated that the physicist didn't state the officer was a liar, which would have alienated the judge. Rather, the expert explained how the police officer could have easily made a simple mistake. This provided the judge something to put in hat on without having to criminalize law enforcement. That's something criminal defense lawyers can learn from as well. As a criminal defense attorney, it is very tempting to show the officer is a liar, and sometimes it must be done. However, the tactful approach of not attacking the officer can often be the best legal strategy.

It's also interesting to point out how using an expert made a difference. In many DUI cases I defend, we contemplate using experts. There are some great ones out there, who can scientifically challenge the reliability of a breathalyzer, blood draw, or other evidence. We even have drunk driving experts who can question the validity of whether there was probable cause to make an arrest or whether the field sobriety tests were administered properly. But the reality is, juror will sometimes think of the expert as a mere hired gun. This case was interesting in that the expert was the defendant himself. Furthermore, it wasn't even before a jury, but before a judge.

Congratulations to this physicists who used his scientific knowledge to win a case. I wouldn't be surprised if he now becomes an expert used by lawyers all over!

Marijuana and Alcohol Traffic Study in Belgium

Kansas Attorney — Mon, 16 Apr 2012 16:24:00 GMT

A recent study showed that Belgian drivers injured in traffic accidents are far more likely to possess drugs and alcohol in their systems than are Dutch drivers. This is according to information to be published in the journal Forensic Science International. This is surprising as cannabis was three times more prevalent in the Dutch general driving population (2.1 percent) compared to that of the Belgian driving population (0.49 percent).

535 drivers were researched in this study. 348 were from Belgium and 187 were from the Netherlands. Researchers stated, "In Belgium, more drivers were found positive for alcohol and drugs than in the Netherlands. ... Alcohol was the most prevalent substance among the injured drivers in Belgium (42.5 percent) and the Netherlands (29.6 percent). ... In Belgium there were ... more positives for THC (8 percent). ... In the Netherlands, almost no positive findings for cannabis were recorded (0.5 percent)."

The conclusion was that "The lower prevalence of alcohol in the Netherlands is associated with a much lower number of crashes and killed and injured drivers. ... Despite the high prevalence of THC found in the general driving population, surprisingly almost no THC was found in the Dutch injured driver population."

While the study is interesting, I doubt it would be very useful in such a conservative place as Johnson County, Kansas. As a DUI defense lawyer practicing Olathe, Kansas, supporting such a study would likely just make the judges and juries in this area angry. But you never know. As a lawyer, I have seen trends, legal popularity, and law opinions change over time. Currently, in Kansas, you can be convicted of DUI for driving under the influence of alcohol or any drug, including marijuana.

Lawrence Kansas Officer No Longer With Police Force

Kansas DUI Attorney — Fri, 24 Feb 2012 23:28:00 GMT

One of the two Lawrence, KS police officers who were recently suspended has been fired. As discussed previously in my blog, two officers were suspended for a ticket fixing scandal where traffic tickets were fixed in exchange for KU basketball tickets. Lawrence, Kansas Police chief Tarik Khatib confirmed today that one of the officers has been released from the force.

In a news release today, Khatib said that the officer had a long friendship with the athletics employee and eventually fixed at least six traffic tickets in exchange for Kansas basketball tickets, stating "As part of this relationship, the commissioned employee received free, discounted or otherwise special access to certain athletic events over the several years. At some point in the relationship, the former KU Athletic Department employee requested assistance with traffic citations." The chief said at least six tickets were fixed between 2000 and 2009.

Apparently, the other officer is not expected to be fired, but remains suspended until a personnel investigation is completed.

I would like to know what traffic tickets were fixed. Drunk Driving and DUI charges? Or speeding tickets that a traffic attorney could easily take care of? Any criminal defense lawyer will tell you that there is a huge difference. I wonder if anyone got tickets to the huge KU/MU game set for this weekend!

According to The Kansas Supreme Court, You Can't Be Both Reckless and Intentional

Kansas DUI Attorney — Mon, 20 Feb 2012 19:36:00 GMT

The Kansas Supreme Court just recently decided the following case. In their decision, the judges stated that a person cannot be both reckless and intentional. The Court stated, "The mental state of recklessness is incompatible with a mental state where a person acts with knowledge, willfulness, or purposefulness, meaning a person cannot act both intentionally and recklessly with respect to the same act. State v. Shannon, 258 Kan. 425, 429, 905 P.2d 649 (1995). Rather, an act is either intended or not intended; it cannot simultaneously be both. Consequently, guilt of one necessarily negates guilt of the other."

Therefore, as a criminal defense lawyer, I have to ask what this means when defending my clients. If they are charged with a "reckless" crime, is it now a defense for them to clarify that they "intentionally" did it? How does this effect involuntary manslaughter and DUI? Drunk Driving is typically a strict liability offense, meaning intent isn't really an issue. Perhaps this case could be used to show that intent is in fact an issue for DUI cases.

I think the answer to some of these quandaries, lies in that a person can intentionally do something reckless. Anyway, the following is the Kansas Supreme Court case that baffles some attorneys.

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,487

STATE OF KANSAS,

Appellee,

CLIFFORD D. O'REAR,

Appellant.

SYLLABUS BY THE COURT

Under circumstances where the evidence establishes that a defendant intentionally shot another with the purpose of disabling the other and there is no evidence that the battery was unintentional, the evidence is insufficient to support a conviction of reckless aggravated battery under K.S.A. 21-3414(a)(2)(A).

Review of the judgment of the Court of Appeals in an unpublished decision filed April 24, 2009. Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge. Opinion filed February 17, 2012. Judgment of the Court of Appeals affirming in part and dismissing in part is reversed. Judgment of the district court is reversed.

Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Edmond D. Brancart, deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

Per Curiam: A jury convicted Clifford D. O'Rear of one count of reckless aggravated battery under K.S.A. 21-3414(a)(2)(A). On direct appeal to the Court of Appeals, O'Rear argued, among other things, that the trial evidence was insufficient to support his conviction because the State failed to show that he acted recklessly in intentionally shooting the victim. The Court of Appeals rejected this and O'Rear's other claims and affirmed his conviction. This court granted O'Rear's petition for review and has jurisdiction under K.S.A. 20-3018(b) (petition for review) and K.S.A. 22-3602(e) (same).

We reverse O'Rear's conviction, concluding the evidence established that O'Rear intentionally shot a gun at the center mass of the victim; thus, he intended the conduct of shooting and the result of causing injury. We reject the State's argument that this intent was mitigated because O'Rear mistook the facts and acted under the mistaken and unreasonable belief that he needed to defend himself or others; these facts do not change the intentional nature of O'Rear's action to shoot and disable the victim.

FACTS AND PROCEDURAL BACKGROUND

The facts are generally undisputed. On the morning of June 26, 2006, 60-year-old Samuel L. Jackson walked to his bank intending to cash a check. It was a cool but sunny morning, so Jackson wore a black stocking cap and sunglasses. Jackson, who suffers from arthritis in his hip and an injured knee, walks with a cane. Jackson's bank was located on the second floor of an office building, and Jackson rode the escalator up to the bank.

O'Rear, a security guard at the bank, noticed Jackson as he reached the top of the escalator. O'Rear focused on Jackson because of the stocking cap and sunglasses. O'Rear then noticed something in Jackson's hand, which O'Rear first thought was a pistol. O'Rear testified that the object was slightly behind Jackson's leg and slightly obscured by Jackson's trousers. Jackson had his hand up to his face, and O'Rear thought it looked like Jackson was trying to hide his face from the camera that was above O'Rear's head. As O'Rear "looked at [the object] for another second," he noticed that it was much longer and thought that it was a shotgun.

At that point, O'Rear "jumped out of the chair," drew his Glock pistol, and moved in a direction to keep Jackson from the door of the bank "in case we had a gun fight, which I thought we were gonna have." O'Rear said once, "drop the gun," and Jackson then turned toward him.

Jackson testified that as he got to the top of the escalator, he noticed O'Rear get up, throw down a newspaper, and then draw his gun. O'Rear started moving to Jackson's left, and Jackson assumed that O'Rear saw something toward that direction. Jackson testified that his only concern when he got to the top of the escalator was to clear out of the way of whatever was going on. Jackson put his cane a step ahead of him to maintain his balance and took a step toward the bank lobby to get out of the way. At this point Jackson heard O'Rear say, "I said drop it," so Jackson turned his head and upper body to look at O'Rear to see what was going on. Jackson was still unsure whether O'Rear was talking to him.

O'Rear mistook Jackson's actions of turning to look at him as Jackson's attempt to "bring[ ] the gun to bear on me." O'Rear fired a single shot at "center mass." The bullet struck Jackson beneath his armpit and lodged in the back of his rib cage. The bullet also punctured Jackson's lungs, causing them to collapse. The shot caused Jackson to fall back down the escalator; the escalator carried Jackson back to the upper level and "chewed" into the side of his body. At this point, O'Rear discovered that what he thought was a shotgun was actually Jackson's cane and, according to his testimony, O'Rear "lost it." Nonetheless, at trial, O'Rear testified that if put in the same situation again, he would take the same actions.

The State charged O'Rear with reckless aggravated battery in violation of K.S.A. 21-3414(a)(2)(A). At trial, after the close of the State's case, O'Rear moved to dismiss the charge of reckless aggravated battery, arguing that it was an intentional shooting and the State made no showing of reckless conduct. The State argued that O'Rear's choice to shoot under these circumstances disregarded the risks of his actions and, therefore, was reckless. The trial court denied O'Rear's motion on the ground that it was the jury's role to determine the question of whether this was a reckless act.

The jury convicted O'Rear of aggravated battery as charged. O'Rear filed a motion for new trial, first arguing there was insufficient evidence to convict him of reckless aggravated battery because the "State's evidence was insufficient to show a conscious disregard, as it only was able to show the jury that the victim was riding up an escalator, was shot, and that he has no idea why." O'Rear also argued that juror misconduct occurred when a juror admitted to considering evidence outside that presented at trial. The trial court denied O'Rear's motion. The court sentenced O'Rear to 34 months' imprisonment but granted him 36 months of probation followed by 24 months' postrelease supervision.

O'Rear appealed.

Court of Appeals' Decision

O'Rear raised numerous issues on appeal: sufficiency of the evidence, prosecutorial misconduct, juror misconduct, failure to instruct on lesser included offenses, and a sentencing error. State v. O'Rear, No. 99,487, 2009 WL 1140249 (Kan. App. 2009) (unpublished opinion).

The Court of Appeals first addressed O'Rear's claim that the State failed to produce any evidence at trial that he acted recklessly because O'Rear, himself, maintained that he acted intentionally when he shot Jackson. The panel pointed to the State's evidence that O'Rear overreacted and failed to positively identify whether Jackson possessed a weapon before he shot Jackson. The panel also noted that O'Rear had nonlethal weapons that he did not use, only shouted one vague order from a concealed location, which was out of Jackson's line of sight, and ultimately placed himself in a position to shoot in the general direction of the bank lobby. The panel found this evidence to be sufficient to prove that O'Rear acted "'under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.'" O'Rear, 2009 WL 1140249, at *3 (quoting K.S.A. 21-3201[c]).

The Court of Appeals panel also rejected O'Rear's arguments regarding prosecutorial misconduct, juror misconduct, jury instruction error, and sentencing issues. O'Rear, 2009 WL 1140249, at *4-8.

ANALYSIS

The first issue before this court, and the only one we reach, involves O'Rear's claim that the State failed to present any evidence of reckless conduct. O'Rear maintains the evidence establishes that he acted "purposefully and willfully" rather than "recklessly and unintentionally." According to O'Rear, "[t]he State provided no evidence that [he] did not intend to shoot Jackson." Rather, he asserts the undisputed evidence, including his own testimony, is that he intended to shoot his gun and he purposefully shot at Jackson's center mass in an effort to disable him and render him unable to exchange gunfire.

Conversely, as sufficient evidence of reckless conduct, the State points to evidence that O'Rear shot Jackson before he confirmed that Jackson was carrying a shotgun. The State argues:

"O'Rear's reckless act was not in pulling the trigger, but instead it was in deciding to shoot with too little information. . . . He was reckless in acting on an uninformed decision to shoot while knowing the consequences of shooting a person but disregarding that risk and pulling the trigger anyway. He never intended to shoot an unarmed bank customer who posed no imminent threat, which is what he did."

Standard of Review

When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether after reviewing all the evidence in the light most favorable to the State, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Martinez, 290 Kan. 992, 1003, 236 P.3d 481 (2010).

K.S.A. 21-3414(a)(2)(A)

Various severity levels of aggravated battery are set forth in K.S.A. 21-3414. Under the statute, the culpability of a defendant's actions is defined in two ways: (1) by the defendant's mental state and (2) by the type of physical contact or the nature of the bodily harm that results. Regarding the first categorization based on mental state, some severity levels of aggravated battery are based on a defendant "intentionally causing" bodily harm or physical contact in one of several specified ways. See K.S.A. 21-3414(a)(1)(A)-(C). Other severity levels of aggravated battery are defined in K.S.A. 21-3414(a)(2)(B) as a defendant "recklessly causing" great bodily harm or bodily harm in certain specified ways. Under the provision with which O'Rear was charged, K.S.A. 21-3414(a)(2)(A), the law prohibits "recklessly causing great bodily harm" or disfigurement.

"Reckless conduct" means "conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms 'gross negligence,' 'culpable negligence,' 'wanton negligence' and 'wantonness' are included within the term 'recklessness' as used in this code." K.S.A. 21-3201(c).

Cases Applying Statute

Applying these statutory provisions to the facts of this case, O'Rear argues his conduct of intentionally shooting a gun at a person's center mass with the intent to render that person unable to engage in a gunfight is the same as that of the defendants in several Kansas cases where the court has concluded shooting at a person is intentional, not reckless. Primarily, as before the Court of Appeals, O'Rear relies on State v. Berkstresser, No. 94,131, 2007 WL 518832 (Kan. App.) (unpublished opinion), arguing the decision most closely resembles his case.

In Berkstresser, the defendant and the victim, Todd Clark, were involved in a dispute. Clark testified that Ryan Berkstresser intentionally shot him. Berkstresser testified that Clark was choking him so Berkstresser fired two shots at the ground to frighten Clark and then aimed higher. A jury found Berkstresser guilty of intentional aggravated battery in violation of K.S.A. 21-3414(a)(1)(A).

On appeal, Berkstresser contended the trial court erred in not instructing the jury on the lesser severity levels of aggravated battery. Berkstresser did not request these instructions at trial. The Court of Appeals found that the evidence did not support the giving of instructions on the two levels of reckless aggravated battery because under either Clark's or Berkstresser's version of events, Berkstresser intentionally fired the gun toward Clark. The Berkstresser court stated that "such conduct is intentional rather than reckless." Berkstresser, 2007 WL 518832, at *6.

The Berkstresser court distinguished the facts of its case from those in State v. Ochoa, 20 Kan. App. 2d 1014, 1020-21, 895 P.2d 198 (1995) (great bodily harm), disapproved on other grounds by State v. Valentine, 260 Kan. 431, 435, 921 P.2d 770 (1996), disapproved by State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003) (disapproving statement that through and through bullet wound is great bodily harm as a matter of law). The Ochoa court determined that reckless battery instructions were warranted when the defendant testified that he did not intend to shoot anyone; he merely shot in the air to frighten others. These facts, the court concluded, could support a verdict that the defendant acted recklessly. Ochoa, 20 Kan. App. 2d at 1020-21.

O'Rear maintains his actions were similar to those of Berkstresser and unlike those of Ochoa; he intended to shoot, rather than frighten, Jackson. Further, O'Rear relies on a statement in State v. Bradford, 27 Kan. App. 2d 597, 602, 3 P.3d 104 (2000), in which the court quoted from Duran v. State, 990 P.2d 1005, 1009 (Wyo. 1999), to support its holding that self-defense is not available when a defendant is charged with reckless conduct. In the quotation, the Wyoming court stated "'[a] charge of recklessness involves an unintentional act.'"

Discussing these cases, the Court of Appeals in this case first noted the quotation in Bradford was dicta and related to a different issue. The court then stated:

"The State does not suggest that O'Rear's conduct was unintentional. The State claims that O'Rear was purposeful and willful when he shot Jackson; however, he consciously and unjustifiably disregarded that danger when he fired at an unarmed civilian who posed no threat. Thus, although O'Rear's conduct was intentional, his conduct was also reckless."

On review, O'Rear cites additional authorities that he maintains stand for the proposition that when a gun is intentionally fired in the direction of the victim, the conduct is intentional only and cannot also be found to be reckless. Some cases arise where a defendant is charged with an intentional homicide and argues his actions were reckless.

Specifically, O'Rear cites to State v. Bailey, 263 Kan. 685, 691, 952 P.2d 1289 (1998), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006), because of its statement that "a defendant's actions in pointing a gun at someone and pulling the trigger are intentional rather than reckless." Bailey is discussed in State v. Deal, 293 Kan. ___, ___ P.3d ___ (2012), this day decided, along with decisions applying a similar analysis, including State v. Clark, 261 Kan. 460, 931 P.2d 664 (1997) (shooting; premeditated first-degree murder defendant seeks second-degree reckless lesser included offense instruction) and State v. Pierce, 260 Kan. 859, 927 P.2d 929 (1996) (shooting; premeditated first-degree murder defendant seeks second-degree reckless lesser included offense instruction); see also State v. Cavaness, 278 Kan. 469, 101 P.3d 717 (2004) (citing to Bailey in context of a death resulting from a beating; premeditated first-degree murder defendant seeks second-degree reckless lesser included offense instruction); State v. Jones, 267 Kan. 627, 984 P.2d 132 (1999) (citing to Bailey in context of a manual strangulation; intentional second-degree murder defendant seeks second-degree reckless lesser included offense instruction).

These cases all apply K.S.A. 21-3402, which provides: "Murder in the second degree is the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." K.S.A. 21-3402 explicitly distinguishes between intentional and unintentional but reckless conduct, clearly focuses the intent element on the result, and is a specific intent crime. See Deal, 293 Kan. at ___. In this appeal, O'Rear argues that aggravated battery is a general intent crime. Consequently, these cases, which relate to a specific intent crime, are potentially distinguishable. We need not determine whether the distinction is real because under the facts of this case O'Rear admitted to having the specific intent to both shoot Jackson and to cause sufficient bodily harm that Jackson could not return fire. O'Rear acted intentionally.

Consequently, we agree with O'Rear that Berkstresser, 2007 WL 518832, supports his argument. Also relevant are some additional cases cited by O'Rear that apply the aggravated battery instruction: State v. Graham, No. 94,777, 2006 WL 2043219 (Kan. 10 App. 2006) (unpublished opinion); Tucker v. State, No. 89,661, 2004 WL 90056, at *5 (Kan. App. 2004) (unpublished opinion); State v. Roberts, No. 91,322, 2004 WL 2977478 (Kan. App. 2004) (unpublished opinion).

In the earliest of these aggravated battery cases, Roberts, the victim testified that Roberts intentionally shot him, whereas Roberts' version was that during a struggle the gun accidentally went off. The Court of Appeals ruled that the trial court did not err in failing to instruct on reckless aggravated battery because the evidence showed either that Roberts intentionally shot the victim or the gun discharged accidentally; there was no evidence Roberts acted recklessly. Roberts, 2004 WL 2977478, at *1-2. In Tucker, the Court of Appeals rejected the defendant's contention that the trial court should have provided the jury an instruction on reckless aggravated battery as a lesser included offense because the only evidence at trial was the victim's testimony that the defendant intentionally shot her. Tucker, 2004 WL 90056, at *5. Likewise, in Graham, the Court of Appeals determined that an instruction on reckless aggravated battery was not warranted because the evidence showed only that the defendant intentionally stabbed the victim. The court stated there was no evidence to support a conviction for reckless aggravated battery; this was not an instance "where she waved the knife around injuring [the victim] by chance." Graham, 2006 WL 2043219, at *3.

Nevertheless, the State argues that these cases do not foreclose a determination that the purposeful act of shooting can be reckless. As the State points out, none of these cases considered the possible mitigating circumstance of a defendant misunderstanding or misperceiving the circumstances that caused the defendant to form the decision to shoot another person.

Reckless Action

The State, in making these arguments, focuses on other facts, specifically those facts that led O'Rear to conclude he was facing a potential assailant and needed to respond with gunfire rather than a lesser degree of force. In other words, the State suggests that intentional acts can be considered reckless when the intent to commit the act is formed from a mistaken understanding of facts that lead the actor to believe his or her action is justified. Under the facts of this case, if this argument was presented by a defendant, it would be an imperfect self-defense argument. In essence, the defendant would be arguing that he or she had an honest, but objectively unreasonable, belief that force was necessary. In a turn of the usual posture, here the State argues that O'Rear formed an honest belief that force was necessary and, because the jury rejected O'Rear's arguments regarding self-defense, that belief must be considered objectively unreasonable. Rather than presenting this theory as a defense, the State uses this theory to argue that intentional conduct morphed into reckless conduct.

This argument does not withstand an examination of the historical and conceptual roots of the imperfect self-defense doctrine, which reveals that a mistaken belief regarding the existence of facts that justify an action does not negate intent. The application of imperfect self-defense in Kansas was explained in State v. Kirkpatrick, 286 Kan. 329, 339, 184 P.3d 247 (2008), where this court stated:

"Perfect self-defense is a concept based on justification or excuse and operates as a complete defense. It applies broadly to all crimes involving the use of force against another. See K.S.A. 21-3211 (Furse) et seq. Imperfect self-defense, in contrast, is based not on justification, but on mitigation and, thus, operates only to reduce criminal culpability to a lesser crime. 40 Am. Jur. 2d, Homicide § 139. Imperfect self-defense is 'not a true defense; it does not absolve a defendant of criminal liability. It is, rather, a lesser degree of the crime of homicide.' State v. Carter, 284 Kan. 312, 326, 160 P.3d 457 (2007)." The Kirkpatrick court explained that the Kansas Legislature had codified imperfect self-defense in both the voluntary and involuntary manslaughter statutes. K.S.A. 21-3403(b) defines voluntary manslaughter to include the intentional killing of a human being committed upon an unreasonable but honest belief that circumstances existed that justified deadly force. The involuntary manslaughter provision, K.S.A. 21-3404(c), provides for an unintentional killing during the commission of a lawful act in an unlawful manner. For purposes of this case, it is noteworthy that neither is defined in terms of "recklessness." Furthermore, the Kirkpatrick court explained that imperfect self-defense is only available in homicide cases, explaining:

"[I]mperfect self-defense exists only as a lesser degree of the crime of homicide. '"Outside of homicide law, the concept [of imperfect self-defense] doesn't exist. . . . With respect to all other crimes, the defendant is either guilty or not guilty. . . . There is no 'in between.'"' 2 LaFave, Substantive Criminal Law § 10.4(i) (2d ed. 2003) (quoting, Bryant v. State, 83 Md. App. 237, 244-45, 574 A.2d 29 [1990]) (imperfect self-defense only applies to homicide crimes and their 'shadow forms' such as attempted murder; it does not apply to assault, battery, assault with intent to disable, or maiming); see also Jones v. State, 357 Md. 408, 422-23, 745 A.2d 396 (2000) (doctrine of imperfect self-defense applies only to criminal homicide and its shadow forms; it has no applicability to other assaultive crimes)." Kirkpatrick, 286 Kan. at 339-40.

Based on this authority, the Kirkpatrick court held "imperfect self-defense is not a defense to criminal discharge of a firearm." Kirkpatrick, 286 Kan. at 340.

The Maryland cases on which the Kirkpatrick court relied are instructive. The most extensive discussion of the rationale of these cases is found in Richmond v. State, 330 Md. 223, 623 A.2d 630 (1993), abrogated by Christian v. State, 405 Md. 306, 311, 333, 951 A.2d 832-35 (2008) (abrogation does not alter Richmond's discussion of basic principles but changes their application in context of felony murder where underlying predicate felony supplies malice).

The Richmond court, as we did in Kirkpatrick, explained that imperfect self-defense is a mitigation defense. Mitigation defenses, the court explained, have historically applied only to homicides and shadow offenses. Richmond, 330 Md. at 233. To explain this development, the court quoted from LaFave & Scott, Handbook on Criminal Law § 76, p. 582 (1972), in which the authors discussed another mitigation defense, heat of passion, and answered the question of "'"[w]hy is it that there exists such a crime as voluntary manslaughter to aid one who kills when provoked into a passion, yet there is no crime like, say, voluntary theft or voluntary mayhem to aid others who, reasonably provoked into a passion, steal from or maim their tormentors?"'" Richmond, 330 Md. at 231-32. The authors explained:

"'The answer is historical. With most crimes other than murder the English court came to have discretion as to the punishment and so could take extenuating circumstances into account in the sentencing process; but with murder the penalty remained fixed at death, without the possibility of making any allowance for the extenuating fact that the victim provoked the defendant into a reasonable passion. "The rule of law that provocation may, within narrow bounds, reduce murder to manslaughter, represents an attempt by the courts to reconcile the preservation of the fixed penalty for murder with a limited concession to natural human weakness."'" Richmond, 330 Md. at 231-32.

In addition, the Richmond court explained the distinction between mitigation of culpability and proof of intent, noting that the distinction had led other courts to reject imperfect self-defense for nonhomicide crimes. The court expanded that reasoning by stating:

"The defense of absence of the requisite specific intent to commit a crime should not be confused with the principle of mitigation. A defendant may intend the exact result he brings about, but be entitled to mitigation because of the circumstances that caused him to act. On the other hand, a defendant not entitled to mitigation may present as a defense evidence of an honestly held though objectively unreasonable belief that is inconsistent with the specific intent required to convict." Richmond, 330 Md. at 234.

This distinction underscores the conclusion that O'Rear acted intentionally. Here, the State's argument and the Court of Appeals' analysis confuses the requisite intent to commit a crime with the principle of mitigation and applies the concept of imperfect self-defense in a nonhomicide situation where it is not available.

The only evidence presented at trial was that O'Rear intended to shoot Jackson in center mass; in other words, he intended to cause great bodily harm to Jackson. The reasons he intended to do so may have been born of misperception, but the intention remained. The mental state of recklessness is incompatible with a mental state where a person acts with knowledge, willfulness, or purposefulness, meaning a person cannot act both intentionally and recklessly with respect to the same act. State v. Shannon, 258 Kan. 425, 429, 905 P.2d 649 (1995). Rather, an act is either intended or not intended; it cannot simultaneously be both. Consequently, guilt of one necessarily negates guilt of the other.

Under the facts of this case, the State failed to establish that O'Rear committed reckless aggravated battery under K.S.A. 21-3414(a)(2)(A) because it did not prove that O'Rear recklessly caused great bodily harm to Jackson with a deadly weapon. Rather, the only evidence was that O'Rear intentionally caused the injury so that Jackson could not engage in a gun battle.

Reversed.

LUCKERT, J., dissenting: I disagree with the majority and would find that there was sufficient evidence to support the jury's verdict that Clifford O'Rear recklessly caused great bodily harm to Samuel Jackson. As the majority points out, the standard of review requires us to view the evidence in the light most favorable to the State. State v. Martinez, 290 Kan. 992, 1003, 236 P.3d 481 (2010). Rather than do this, the majority has focused on facts that are contrary to the verdict and has justified doing so because those facts prove a different crime than the one charged.

Under the twist from the usual that occurred in this case, it was in O'Rear's potential best interest to admit to intentional actions, rather than to try to make his actions seem reckless. Hence, it was to his benefit to admit that he purposefully fired at center mass. Yet other evidence suggests that O'Rear was not paying attention to what was happening around him and reacted hurriedly without assessing the situation. From this evidence a reasonable jury could conclude O'Rear did not intentionally cause great bodily harm to Jackson. Rather, the jury could conclude that O'Rear's conduct in firing the gun was as reckless as his assessment of the situation. Yet, the majority accepts O'Rear's self-serving statement as unassailable.

As an appellate court we should filter the evidence that is contrary to the verdict and set it aside, meaning that in this case we should not consider the evidence of intentional conduct but should examine the record for evidence that supports the verdict of reckless conduct. In doing so, an appellate court should not expect the State to have disproved the elements of other crimes, such as an intentional crime when it had charged a reckless crime. Consequently, applying the sufficiency of evidence standard of review, I would not exonerate a defendant because the State proved a less culpable crime when evidence could also be viewed as supporting the more culpable offense.

As one court explained in sustaining a verdict for reckless endangerment despite evidence that the defendant purposely harmed the victim, when a legislature describes the requisite mental state for a crime, it describes the "minimum content for a finding of guilt in a particular degree, not the maximum content. It is always a defense to prove that one is less culpable than charged. It is not a defense to prove that one is more culpable than charged. One does not defend against a charge of second-degree murder by proving that one was really guilty of first-degree murder. To prove culpability at a given level, the State is not required to disprove greater culpability, although a casual scanning of definitional sentences might sometimes lead us to believe so.

. . . .

"To be guilty of reckless endangerment, the defendant must be shown to have possessed nothing less than a reckless disregard of the consequences of his life-threatening act. He may, however, be shown to have possessed a more blameworthy mens rea, such as an intent to maim, but that excess culpability will be simply surplusage as far as the reckless endangerment charge is concerned. It certainly does not operate to exculpate him of the reckless endangerment.

"This type of linguistic problem is a recurring phenomenon in the criminal law. Although slack linguistic usage frequently describes a lesser degree of guilt in terms of the absence of a greater degree of guilt, the absence of the greater guilt is never an affirmative element that must be proved." Williams v. State, 100 Md. App. 468, 477, 641 A.2d 990 (1994).

For example, the court noted: "Second-degree murder is frequently described as unpremeditated murder. It does not, however, require proof of nonpremeditation." Williams, 100 Md. App. at 477. Further explaining its reasoning by example, the Williams court stated:

"How, one might ask, could a single manslaughter, for instance, be both involuntary and voluntary? Linguistically, it would seem that the two are mutually exclusive. If, indeed, a conviction for involuntary manslaughter required demonstrated proof that the killing was not voluntary, then findings that it was both involuntary and voluntary would, indeed, be inconsistent. Because, however, a finding of involuntary manslaughter may imply nothing more than the non-proof of voluntariness, simultaneous findings of both involuntariness and voluntariness would require no more than the merger of the lesser mens rea into the greater. Cf. State v. Parker, 128 Ariz. 107, 624 P.2d 304 (1980)." Williams, 100 Md. App. at 478.

I agree with this reasoning and disagree with the majority's position of focusing on the evidence contrary to the jury verdict rather than applying the correct standard of review. Because I agree with the Court of Appeals' treatment of the other issues it considered, I would affirm the conviction.

ROSEN, J., joins in the foregoing dissent.

Cops Suspended for Ticket Fixing in Exchange for KU Tickets

Kansas DUI Attorney — Fri, 17 Feb 2012 21:02:00 GMT

Yesterday I wrote about the two police officers who were suspended for fixing traffic tickets in exchange for KU basketball tickets in Lawrence, Kansas. I was unable to state the names of the officers, because I didn't know. This information is being withheld from the public.

City manager, David Corliss will not release that information as city officials are saying it is a personnel matter. It's unclear as to why it being a personnel matter would prevent the truth from coming out. If you or I was accused of this, they would quickly provide our name. There needs to be accountability. The city has not provided details about the number of tickets that were dismissed. Apparently, the scandal had been ongoing for at least several years. Even more importantly, what kind of tickets were fixed? Just speeding tickets? Or were DUI (drunk driving) tickets fixed as well. The city needs to be more open. Were lawyers and attorney involved? Or was it just with the accussed?

The case came about as Police Chief Tarik Khatib received an anonymous tip last year about the ticket fixing scandal. It was then referred to the FBI who conducted the investigation. While two officers were suspended, criminal charges are not expected.

Mayor Aron Cromwell said that he expects the officer who was leading the activity will be likely be removed from the city's police force, stating "I think that would be a likely scenario," Cromwell said. "The actual decision is up to the police chief, but I don't foresee any other potential outcome for the one officer."

While many people are outraged by the event and the city's unwillingness to discuss, it is admirable that the federal authorities were contacted to fully investigate the matter. Moreover, the Mayor speaking out and getting involved is an encouraging move.

Police Officers Suspended Following KU Ticket Investigation By FBI

Kansas DUI Attorney — Thu, 16 Feb 2012 22:04:00 GMT

Two police officers for the Lawrence police department where recently suspended. Apparently, they were connected to a scandal involving sporting tickets for KU. The suspensions occurred after an FBI investigation regarding traffic tickets being

fixed in exchange for KUS basketball tickets. While further information has not yet been provided, this is linked to a larger ticket scandal at KU. I wonder if traffic tickets involved more serious traffic tickets such as DUI?

Feds Taking Over DUI

Kansas City DUI Attorney — Mon, 13 Feb 2012 18:54:00 GMT

Drunk Driving Laws are a state issues. As a DUI defense attorney, I am regularly in the County District Courts for the State of Kansas. My legal practice rarely takes me into the federal courts, where I have only done one jury trial. All my other trials have been in the district courts or the municipal courts. However, more and more the federal government is taking away State rights and giving more power to the federal government. That appears to be true for DUI laws. It appears I may eventually become a "federal" DUI defense lawyer soon.

Funding will be an issue of course. Currently, each counties in Kansas pay the expense of putting DUI offenders in custody. DUI offenders are not sent to prison, where the State of Kansas would be responsible. Rather, DUI offenders go to jail, on the county's dime. Will the federal government really then send people to federal prisons? I doubt it. However, I could see the federal government taking control and then forcing the State/County to pay for it. As Un-Constitutional as that sounds.

Check the folowing article regarding money, DUI, and quotas.

Diabtetic Man Suspected of DUI Beaten

Kansas DUI Attorney — Thu, 09 Feb 2012 14:53:00 GMT

Check out the folowing video of police attacking a civilian thought to have been drinking and driving.

This is another example of somebody having a diabetic episode being mistaken for being drunk. The cops even assumed that the diabetic seizures was just him being hostile. After beating the man and kicking him in his face, the officers then forced him to stand up and take a breath test, which he passed. Yet another example of how DUI enforcement rules all politically and on the streets. While the civilian was the one beaten, rather than assist him and inquire about his well being, the police ask each other if they are ok. I guess you need to be in the brotherhood to be treated with common decency. Don't get me wrong, many officers are in fact very considerate and take their job seriously as a public servant. Unfortunately, many police use their badge as an excuse to abuse and assert their authority.

With the help of a personal injury attorney, the man did receive a settlement of $292,000. However, it was paid by tax dollars, and not by the officers who actually did this. Also, ahy is it that none of these officers were criminally charged? Yes, we should give some leeway and freedom for the officers to effectively do their job, but this is another example of law enforcement going way over the line. For example, what possible reason would allow an officer to go over to a man in handcuffs and subdued and kick him in the face several times?!? They won't even release the names of the officers. If you or I did those things, we would be jailed and our names would definitely be provided.

Supreme Court GPS Case Discussed

Kansas DUI Attorney — Tue, 07 Feb 2012 16:06:00 GMT

I was watching "Thirty Rock" last night on NetFlix and laughed when one of the characters stated he didn't have a cell phone because "he wasn't going to have a government tracking device on him." The character was made out to be a crazy antigovernment loon. But as I reflect, is that really far from the truth?

The United States Supreme Court recently decided a very followed case regarding the government placing GPS devises on cars to monitor people and whether the 4th Amendment provides protections against this. In United States v. Jones, the Supreme Court did in fact disallow the placing of the GPS device for that specific case, but not placement of GPS devices in general. They found that it was a violation in the specific case because the government had to trespass in order to initially place the device. It left many other questions open.

When the government lawyers indicated it was ok to go around placing devices, Justice Breyer replied: "[I]f you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States." Justice Breyer further remarked, "[I]f you win, you suddenly produce what sounds like 1984 . . . ."

A standard of reasonableness seems to be the issue. But the truth is, if the government is left to their own devices, reasonableness will not prevail and many peoples rights will be withered away. Proper procedures and protocols should be established ahead of time to help ensure and protect our rights and privacy. As technology continues to advance, these questions regarding our 4th Amendment and "Big Brother" will continue to appear.

Seeing as how the Constitutional protections seem to be most ignored in DUI cases, I foresee interesting procedures taking place in the future? Tracking devices allowed for people ever accused or suspected of drinking and driving?

Parking Ticket Appeal

Kansas DUI Attorney — Mon, 06 Feb 2012 19:09:00 GMT

As a traffic lawyer, I mainly deal with drunk driving cases, but sometimes I might deal with a regular speeding ticket. Due to the legal fees and expense of appeals, I have only appealed one speeding ticket from the city court. However, I recently learned of someone who appealed her legal issues all the way to the Kansas Court of Appeals.

Junction City woman, Mary Somrak, got a $55 parking ticket for slopping over the line in her parking space at a townhome complex. Yes, she appealed it all the way to the Kansas Court of Appeals.

She fought it because she didn't believe it was right for the city to write tickets in a private parking lot at 2 a.m. It was an especially outrageous thing for the city to do as the car she was supposedly parked to close to was her own second car.

Junction City apparently issued about $1,000 of parking tickets that evening and it is believed that they are using this simply as a means to get out of their serious debt problems which they were left in after the Mayor scandal and development scandal from awhile back.

City Commissioner Scott Johnson, opposed the appeal from the beginning and said, "It's just embarrassing. I think they feel a lot more confident going after a single mom than they do going after millionaires who ripped the city off."

Somrak appealed to District Court, and the judge did the right thing when he dismissed her ticket. Surprisingly, the City then appealed that decision to the Court of Appeals. The Court of appeals affirmed the District Court's decision.

If the city was bankrupt, how could they afford to spend all the time Appealing it to the Court of Appeals? Another example of government waste. As a DUI defense attorney, I have seen appeals for serious issues, but a parking ticket?!? Really?

Big Breasts a Defense in a DUI Case?

Kansas DUI Attorney — Fri, 03 Feb 2012 18:06:00 GMT

As a DUI defense lawyer I have argued numerous different defenses regarding standardized field sobriety testing. I have not however argued this new "big breasts" defense a lady recently argued during her DUI investigation, which led to her being arrested on the evening of January 29, 2012.

49 year old, Maureen Raymond of Port St. Lucie, claimed that her large breasts hindered her ability to perform field sobriety tests when she was arrested for DUI. According to the reports, she actually started to dance and disrobe during the drunk driving investigation. When asked by a Martin County Sheriff's deputy whether she could follow his instructions for the tests, she replied, "hell no not with these . . . not with her big boobies."

Apparently, she ended up not providing a legitimate breath sample.

The NHTSA manual does state that physical complications like back problems can indeed effect the results of field sobriety testing. However, the manual doesn't say anything specifically about large breasts. I wonder if her DUI defense attorney will argue the issue at future court hearings!