How can a driver win a Johnson County driving under the influence (DUI/DWI) case & the administrative driver's license suspension hearing?

If you have been charged with driving under the influence (DUI) in Johnson County or elsewhere in Kansas, the "winnability" of your case is undoubtedly one of the questions on your mind.  Kansas DUI cases are unique among criminal charges because they are "status crime" - i.e. in most cases the defendant has not done anything inherently wrong, they are being charged because of their "status" as people who registered a certain number on a machine or a person who a police officer believed was too intoxicated to safely operate a car. 

The state does not make laws calling for jail time for driving while talking on a cell phone, driving without enough sleep, driving past the age where one can see and react to hazards, or any other "impairment" that folks regularly get behind the wheel with.   The State also does not allow a person to be convicted of a crime solely on the testimony of a machine as is done in a DUI case involving a Intoxilyzer 8000 test.  DUI charges are truly unique criminal cases that raise the possibility of a wide variety of defenses that may be pursued by a knowledgable and clever Johnson County DUI attorney.

The bottom line is that there must usually be an injury (physically, emotionally, or financially) or an intent to cause an injury for a person to be convicted of a crime.  DUI cases are another matter.  Many Johnson County DUI arrests start with a burnt out lamp or a speeding violation, neither of which offers any indication that the driver is impaired to a degree that they cannot safely operate a motor vehicle!  Think about it, it takes more control to operate a vehicle that is speeding than one that is driving at the speed limit.  A tag light being burnt out also says absolutely nothing about a driver's ability to operate their car, but these violations are often used as pretexts by police officers in Johnson County to make a stop and start a DUI investigation, especially at night.  

No one, including the DUI lawyers in this law office, believes that drunk driving should be allowed, but all too often we see the prosecution trying to essentially hang a client who has done nothing more than have a few beers before going home.  If you were falling-down-drunk, then we will probably be forced to focus on limiting the damage from the charge.  If however, you were OK to drive, but arrested anyway, then we may be able to find many ways to prevail in your case. 

Cases that appear to be impossible to win can often be won at trial or even before trial through the utilization of a Motion to Suppress, aggressive trial strategies, or clever cross-examination.

General thoughts about administrative hearings for proposed license suspensions:   Some in Johnson County do not believe that the administrative hearing with the Kansas Departmetn of Revenue can be won and will either make a half hearted defense at the hearing, or none at all. There are no plea bargains at the administrative hearing - you will either get the proposed suspension or you won't.

We beleive in challenging EVERY proposed license suspension because there is no incentive not to.  There are no plea bargains with the Kansas Department of Revenue - you're either going to beat the proposed suspension or they're going to take your license.  It is truly that simple.  Do not anyone tell you that your administrative hearing cannot be won! 

Examples of ways to prevail in a Johnson County DUI case:

1.  Filing a Motion to Suppress based upon an illegal stop. Case law is clear that if a traffic stop was not warranted, then the proper remedy for the Court is to suppress all evidence gathered from the stop, meaning that the Court orders the evidence may not be presented by the State.  When applied to a DUI case in Kansas, a successful Motion to Suppress based on an illegal stop almost always results in an acquittal. 

This office enjoys filing and arguing such motions because they are a "no-lose" proposition for our clients - if the Court agrees with us, the case goes away, if the Court does not agree with us, we have still gained another opportunity to get the police officers' and witnesses' sworn testimony which can later be used for impeachment purposes at trial. 

A copy of just such a Motion successfully argued by this office is available here:  Click to see a Motion to Suppress filed in Johnson County District Court. 

2.  Filing a Motion to Suppress an arrest made without probable cause.  To arrest a driver, law enforcement must have more than a mere hunch that they've done something wrong - they must have observed sufficient facts to convince a court that the driver may have committed the crime.  If we beleive that an arrest was made without probable cause, then we will file the Motion to Suppress and prepare to argue it to the Court.

We enjoy filing Motions to Suppress for lack of probable cause, for many of the same reasons we like to file them on illegal stops. These are also a "no-lose" proposition for our clients - if the Court agrees with us, our client usually walks out of court completely free. If the Court does not agree with us, we have still gained another opportunity to get the police officers' and witnesses' sworn testimony which can later be used for impeachment purposes at trial.  The value of this can be huge, especially when the State of Kansas is relying on the officer's observations to support their effort to convict you.

A copy of a winning Motion to Suppress is available here:  Click here to see a Motion to Suppress filed in Overland Park Municipal Court. 

3.  Filing a Motion to Suppress breath/blood/urine results.   The breath test machines used in Kansas (also called the Intoxilyzer 8000) are unreliable instruments even on their best days, are run by officers who occasionally make mistakes, and are based on junk science.  The DUI lawyers in this office evaluate every case for flaws in the testing process that may cause the Intoxilyzer 8000 results to be ruled inadmissible.  

The Kansas Department of Health and Environment is tasked with certifying these machines and their operators.  If these requirements are not fulfilled, the DUI lawyers in our office may be able to file a Motion to Suppress the results.  If successful the Court would rule that such tests were inadmissible and the prosecution could either dismiss the case or proceed only on the officer's testimony as well as the in-car video and/or audio recordings.

For instance, the machines must be recalibrated at certain times.  If they're not done so according to schedule, then your DUI attorney may be able to suppress the results.  If the officer conducting the test is not properly certified, then the tests should not be admitted, either.  There are many more requirements that your Johnson County DUI lawyer should examine thoroughly before advising you on your case.  Such an examination can only be performed once the in-car video, station video, audio tapes, police reports, and intoxilyzer records have been examined by a diligent DUI attorney.

A copy of a winning Motion to Suppress is available here:  Click here to see a successful Motion to Suppress filed in Johnson County District Court.

4. Pointing out improper and unfair field side sobriety testing to the Court and/or jury.   The standardized field side sobriety tests performed by Johnson County police officers are a crock, pure and simple.  One of the first series of questions I ask prospective jurors at a DUI trial is "who here had to take a written test to get their license?" followed by "who here had to get in car and drive around with an instructor to get their license?"  then the point of the questions - "who here had to stand on 1 leg to get thier license?  No one?  Well who here had to walk 9 steps make a specific turn, and then walk 9 steps back?"   The point is immediately clear  to the jurors - the tests that law enforcement rely upon to make an arrest aren't even requirements to drive in the first place.  Since the officer doesn't know how the person would do sober, then how do they come to their conclusions?

Furthermore, many officers don't even give the test instructions correctly and many others grade them incorrectly.  The National Highway Transportation Safety Administration (NHTSA) specifies that to be useful clues of impairment, the tests must be instructed in a certain manner and graded in a specific manner.  Our experience has shown that some of Johnson County's leading DUI enforcement officers routinely give incorrect instructions or grade the tests incorrectly.  For instance Officer Lee Kibbee of the Olathe Police Department makes a habit of leaving the patrol car's lights on which NHTSA prohibits.  Officer Kibbee also routinely gives the instructions incorrectly and pauses at specific points during the instructions for what we beleive is an attempt to make it more difficult to process the instructions and cause a test failure.  Click here to see an example of Officer Kibbee's instructions compared to those in the NHTSA manual. 

If you can remember back to high school, you will probably remember that the most important tests were announced well before they were given, the teacher informed the test-takers what they would be graded on, and the the teacher allowed students to ask questions before they took the test.  None of those elements of fairness are available withthe SFSTs. 

For instance, the walk-and-turn test grading starts as soon as the Johnson County police officer says "place your right foot in front of your left, put your arms down by your side, and stay that way until I tell you to begin."  If your nose itches and you scratch it, that is a point off.  If your feet get tired standing in such an unnatrual position and you move them, that is a point off.  Here is the kicker - if you get two points off, you fail the test and you are likely going to be arrested.  Yes, you can fail the walk-and-turn test before you even start.

5.   Pointing out health and medical problems.  Medical conditions can not only affect a person's actions on the side of the road, but their performance on the Intoxilyzer as well.  Most people can agree that a poorly healed injury, old age, or general lack of coordination can explain one's performance on field side sobriety tests.  however most people don't know that medical conditions can drastically affect the readings on the breath test machine (intoxilyzer 8000).  Some studies have shown that diabetics can blow over the legal limit without having ever taken a drink.  To learn why, see the next section:  Pointing out the severe deficiencies of the Intoxilyzer 8000 breath test machine.

Police officers in Johnson County are also fond of saying "the eyes don't lie," when referring to the horizontal gaze nystagmus (HGN) test and the presence of bloodshot eyes.  With respect to the HGN test, it is absolutely junk science.  The science is so bad, we have never gone to trial without insuring that the results of this test are not presented to the judge or jury.  An example of such a motion is available by clicking here:  Motion to Suppress HGN tests.  With respect to the testimony of "bloodshot eyes," we first find it curious that the officers never bother to take a picture to demonstrate this, even though it almost always cited as a reason to make an arrest.  At trial, we usually point out that NHTSA itself has cast doubt on the use of bloodshot eyes to suggest intoxication because they are most often factors of other conditions, such as being awake for an extended period of time, allergies, a reaction to irritants such as cigarette smoke, and numerous other factors.  

6.  Noting the positive aspects of our client's driving (when appropriate).   If you were pulled over for an offense that is not a possible indicator of intoxication, you can bet we'll make a point of emphasizing that to the jury.  The State often likes to point to the SFSTs because they know that everyone fails them.  We, however, like to point to our client's driving.  After all, the prosecution is trying to prove that you couldn't safely drive your vehicle. 

7.  Trial strategy .  An effective trial strategy is a combination of all of the above, preparation on the part of your DUI attorney, and the ability to quickly adjust during trial.  Cross examination of the officers involved in your arrest can yeild excellent facts in your defense or make the officer seem unreasonable - both of which can help you tremendously with a jury. 

We love taking cases to trial - to us it is what being an attorney is all about.  If you're looking for an attorney to take your case to trial, call us today at 913 764-5010 to schedule a free initial consultation.