Legal Standard for Breathalyzer Test

June 6th, 2011

Legal Standard for Breathalyzer Test: The officer must have ‚Äúreasonable suspicion‚ÄĚ that a driver is intoxicated to request a Breathalyzer test.¬† If you were stopped for having a taillight out and did not admit having anything to drink, the officer must develop evidence to justify a Breathalyzer test.¬† You have the absolute right to decline to perform field sobriety tests and should politely do so.¬† They are subject to the officer‚Äôs subjective judgment, and the officer has typically already determined that he believes you are under the influence.¬† The only purpose of the field sobriety test is to develop ‚Äúprobable cause‚ÄĚ to support a DUI arrest.¬† This means if the officer did not observe you driving erratically, did not observe any specific signs of intoxication, such as, red eyes, slurred speech, the smell of alcohol, etc and you refuse field sobriety testing, the officer probably lacks probable cause to conduct a breath test.¬† If the officer directs you to take a breath test anyway, your attorney can seek to have the breath test results suppressed.

A Law Firm Focusing on DUI Defense

The DUI Clinic is committed to defending people who have been charged with a DUI offense. Our lawyers have represented people in the entire Kansas City metro area and throughout the states of Kansas and Missouri for more than more than 15 years. Our extensive knowledge of these states’ laws concerning DUI charges and DUI defense has allowed us to seek positive resolutions for countless clients.

Contact The DUI Clinic by calling us at 913-262-4444, toll free at 888-4-DUI-CLINIC.

What Kind of People Are Arrested for DUI?

May 11th, 2011

Many in our society believe that those who commit DUI are somehow ‚Äúbad people‚ÄĚ, but this type of negative stereotype is neither constructive nor accurate.¬† Most people in Kansas or Missouri have operated a vehicle after drinking.¬† There are almost 50,000 DUI arrests in Kansas and Missouri annually.¬† Those arrested whether in Kansas, Missouri or throughout the U.S. are from all walks of life.¬† Some notable examples of recent DUI arrests around the country provide a fairly clear picture of the diverse scope of those arrested for DUI:

Judge Whom Oversees DUI Cases: A Montana Judge who oversees DUI cases was arrested for driving under the influence of methadone.  The Judge who oversees DUI cases in Montana allegedly drove to the police station to request that police officers open the courthouse because he was scheduled to conduct a wedding.  The police indicated that the Judge appeared to be under the influence of alcohol or drugs because he was disoriented and sweating heavily.  The Judge allegedly admitted to taking lorazepam in an attempt to help with his recovery from methadone addiction.

Former President of Florida Chapter of MADD: Although MADD is a leading organization dedicated to increasing penalties for drunk driving, this did not prevent the Former President of the Florida Chapter of MADD from being arrested for DUI with a blood alcohol concentration (BAC) three times the legal limit.

West Virginia Prosecuting Attorney: A prosecuting attorney in West Virginia who is empowered with the authority to prosecute those charged with DUI offenses was himself arrested and charged with DUI.  He was arrested after being involved in a DUI related auto accident.

Deputies that Enforce DUI Laws: Dozens of Sheriff Deputies all over the U.S. have been arrested for driving under the influence (DUI).  These deputies routinely investigate and enforce DUI law and see the consequences of fatal DUI accidents.

These are just a few recent examples that show anyone can be arrested for DUI.  Driving under the influence alcohol arrests reach all races, genders, occupations and socioeconomic classes.  DUI arrests even occur among those who are most directly involved in enforcing DUI laws.  A recent study revealed that 13 percent of all drivers admit to driving while intoxicated during the last year while another 4 percent admit to driving while under the influence of drugs during the last year.

Drunk drivers are not ‚Äúbad people‚ÄĚ, they are Judges, police officers, MADD officials and people just like you who made a mistake that can have terrible consequences.¬† A DUI conviction is a very serious Kansas criminal offense that can result in harsh penalties and a lifetime of adverse consequences.¬† If you or someone you love has been charged with DUI in Kansas City, it is important to seek a DUI attorney in Kansas City who regularly represents clients on DUI charges in Missouri or Kansas.¬† At The DUI Clinic of Hottman and Associates, we have been representing those charged with DUI throughout the greater Kansas City area for over 15 years.¬† When bad things happen to good people, we are there to help not judge so call us today at 888-4-DUI-CLINIC.

Kansas City DUI Attorney Discusses – DUI For Not Driving? Misguided DUI Enforcement

May 9th, 2011

Many people presume that they cannot be arrested for DUI if they are not driving.¬† This is a common sense reasonable assumption as the offense is actually called ‚Äúdriving under the influence‚ÄĚ?¬† However, the law does not specifically require that the vehicle be moving or even that the motor of one‚Äôs vehicle be running.¬† Kansas DUI law uses a vaguer term and imposes liability if a driver is in ‚Äúcontrol‚ÄĚ of the vehicle.¬† Control may be interpreted much broader than actually traveling along the roadway in a vehicle or even having the engine running.

It is possible to be arrested for DUI in Kansas even if you all you are doing is sitting in the car in a parking lot with the AC trying to stay cool or pulling over to sleep it off because you believe that it is not safe for you to drive.  Even if the ignition is turned off, it is still conceivable that you can be arrested for DUI, especially if the keys are in the ignition.  The wisdom of such zealous enforcement of Kansas DUI law can certainly be questioned because this approach effectively punishes drivers for making a decision not to drive if they are intoxicated.

Laws do not exist in a vacuum but are tied to public policy objectives.  In the case of Kansas DUI law, the purpose of the law is to discourage driving while intoxicated because it increases the likelihood of alcohol related auto accidents that result in a high number of injuries and fatalities.  The question one should ask is how is this policy served by citing someone who has made a decision not to drive.  Regardless, the statute permits a person to be prosecuted for DUI if the driver is in control of the vehicle.  Someone who is in the passenger seat with the keys in the ignition or readily accessible may be found to meet this requirement.

This means that if you have been drinking and believe it is not safe to drive, you should take certain steps to avoid a misguided DUI arrest.  The first option is to remain in the parking lot of the establishment as opposed to pulling over and parking on the side of the road.  This is basically a practical consideration because there is a higher probability that an officer will stop and inquire of you if you are parked on the side of a highway or a city street.  You should also sleep in the back seat of the vehicle and place the keys to the vehicle in the glove compartment or otherwise out of your reach so that it is clear that you do not have ready access to control of the vehicle.

The other reason to remain in a parking lot or off the roadway if you decide to pull over and sleep it off is that you may avoid giving an officer probable cause.  If you are laying down in the backseat of the vehicle, you are not visible so it looks like the car is simply parked in a parking lot.  If a passerby notices you sleeping in the vehicle or an officer happens to drive by and notices you sleeping in the vehicle, this still could be a problem.  However, if you are parked on the side of the road, Kansas courts have upheld the right of an officer to stop and inquire of a driver of an apparently disabled vehicle in this situation.  If the officer when inquiring smells alcohol or notices other commonly sited signs of intoxication including watery bloodshot eyes, slurred speech or the like, the officer may then initiate a DUI investigation and ask you to perform field sobriety tests and/or breath testing.  This may ultimately lead to your DUI arrest.

If you find yourself arrested for DUI in Kansas, you may face very serious penalties.  Our Kansas City DUI attorneys at The DUI Clinic of Hottman and Associates represents those charged with DUI offenses in Kansas and Missouri.  We have been successfully representing those charged with DUI in Kansas City for over 15 years.  Contact us today to see how we can help at 888-4-DUI-CLINIC.

Stopped in Kansas after Drinking Alcohol: What Do You Do? [Part II]

May 8th, 2011

This is the second of a two-part article on how to handle being pulled over by a police officer if you have been drinking.  While the article can be read alone, we encourage you to read Part I of the article first.

Remain Calm

This might seem obvious, but the inability of a driver to control their emotions during a Kansas DUI stop can lead to an array of mistakes.  Because drivers pulled over for DUI may never have had more than a speeding or parking ticket, the encounter can be much more intimidating than most people imagine until they are in the middle of the confrontation with a police officer.  People often nervously blurt out damaging apologies, admission or apparent lies that simply make matters worse.  Many times a police officer pulls someone over and does not have sufficient legal cause to conduct a DUI investigation or arrest the driver for DUI.  The officer may be pulling you over for nothing more than a taillight being out.  If you remain calm and poised, you may avoid turning a molehill into a mountain.

Do Not Submit to FSTs or Portable Breathalyzer Testing

While the Kansas Implied Consent Statute means that you can face an administrative suspension of your license for refusing to submit to chemical testing, this does not apply to FSTs or a breath test using a portable breath test device in the field.¬† Both FSTs and the portable breath test are designed to create probable cause for a DUI arrest.¬† This battery of testing is designed to put you in jail not ‚Äúget to the truth.‚Ä̬† You should be polite and respectful when you decline, but you should refuse to submit to the testing.¬† The officer may arrest you anyway but your refusal is not evidence of guilt because you have no legal obligation to submit to such testing.

Ask If You Are Free to Leave

If you have declined FSTs and/or portable breath testing, the officer may either arrest you or send you on your way.¬† If the officer arrests you and has no other evidence other than that which led to the initial stop (i.e. swerving out of your lane), any DUI charges may be based on nothing more than the formal chemical test conducted later.¬† This testing is open to a wide array of challenges so you have helped build the basis for a strong defense strategy if this becomes the only real evidence of driving under the influence, especially if you are close to the legal limit.¬† If your blood alcohol level is .10 percent and there is reasonable delay between your stop and the chemical testing, your blood alcohol level may have risen during the interim.¬† This is known as the ‚Äúrising BAC defense.‚ÄĚ

The reason you should ask if you are free to leave is that it creates other rights by escalating the situation into a ‚Äúcustodial interrogation‚ÄĚ or arrest.¬† The reasonable suspicion that was the justification for the initial stop (using the swerving vehicle example) only permits the officer to briefly detain you and inquire further.¬† If the officer refuses to allow you to leave after conducting his initial inquiry without building additional evidence, this may create a basis for our experienced criminal defense team to file a motion to suppress evidence because your Miranda rights are violated.

Our Kansas City DUI defense law firm has helped thousands of people in Kansas and Missouri facing serious DUI charges. If you or someone you love has been arrested for DUI, you should contact The DUI Clinic of Hottman and Associates today!  DUI charges are serious but help is merely a phone call away at 913-262-4444.  Call today for your free no obligation initial case evaluation.

Stopped in Kansas after Drinking Alcohol: What Do You Do? [Part I]

May 2nd, 2011

Many of us have experienced the feeling of dread that occurs while you are traveling down I-70 in Kansas or Missouri and suddenly see red flashing light in your rearview mirror.  The stress and anxiety that goes with being pulled over is even greater if you know that you have been drinking.  You may be overwhelmed with a wide spectrum of emotions including fear, anxiety and even guilt.  It is important to realize that people from all walks of life find themselves in your situation, but the outcomes of these encounters with law enforcement often turn out very differently depending on how they are handled.

The most effective defense to a potential Kansas DUI charge begins the moment you are pulled over.  Todd Hottman and the knowledgeable and experienced staff at the DUI Clinic of Hottman and Associates analyze every aspect of your DUI stop, DUI investigation, DUI arrest and DUI chemical testing.  This means that what you do at the time of the stop can be as important as what happens when you submit to chemical testing after your arrest for driving under the influence.  In this two-part article, we have provided some suggestions for how to handle being pulled over in Kansas if you have been drinking.

Provide Identification but Do Not Volunteer Information

The officer will usually have stopped you because he or she observed a traffic violation like speeding or ‚Äúerratic driving‚ÄĚ, such as failing to maintain one‚Äôs vehicle in a lane.¬† If the officer pulled you over for either reason, you must provide the officer with your driver‚Äôs license, registration and proof of insurance.¬† You should not admit that you have been drinking or that you are coming from a place that serves alcohol like beer or wine.¬† The officer may use this type of admission as part of the evidence justifying a DUI investigation or subsequent DUI arrest.¬† The officer may even later visit the business to obtain evidence, such as credit card receipts, surveillance video or witness statements from servers.

The officer should tell you why you were pulled over, and you have a right ask if he or she does not do so.¬† If you are pulled over for speeding or a busted taillight, the officer needs more evidence before he can even conduct a DUI investigation.¬† The officer needs enough evidence that you were driving under the influence of drugs or alcohol to meet the legal standard of ‚Äúreasonable suspicion‚ÄĚ.¬† Speeding or a broken taillight does not create a basis for reasonable suspicion because neither activity suggests that a driver is committing a DUI offense.¬† If you do not voluntarily or unintentionally provide evidence that you may be driving under the influence in this situation, you may well drive away.

If the officer pulls you over for swerving in and out of your lane, the officer typically has reasonable suspicion when you are pulled over.  This only permits the officer to briefly detain you and inquire further.  The officer will look for signs that you have been drinking including alcohol on your breath, red watery eyes and slurred speech.  If the officer does not observe any of these signs, the officer generally should send you on your way.  The officer typically needs more to conduct a DUI investigation.  A common ploy in this situation is to ask if you will consent to field sobriety tests (FSTs).  The officer cannot force you to submit, and you should not do so.  Field sobriety tests are merely intended to justify having you submit to a portable breath test, which you are also free to decline.  The officer may arrest you anyway if you refuse these tests, but Mr. Hottman may be able to have the charges dismissed or will have a strong case to reduce any charges because without more the officer lacks probable cause (a higher standard than reasonable suspicion) to make an arrest.

If you or someone you love has been arrested for DUI, you should contact a Kansas City DUI attorney at The DUI Clinic of Hottman and Associates today!  DUI charges are serious but help is merely a phone call away at (913) 262-4444.  Call today for your free no obligation initial case evaluation.

Kansas City Drunk Driving Defense Strategy – Officer Overestimated Level of Intoxication

March 24th, 2011

Officer Overestimated Level of Intoxication: A study conducted by Rutgers University found that police were no more accurate at determining intoxication levels than social drinkers.  Police officers like social drinkers accurately judge whether a person is intoxicated only 25% of the time.  When an appeal to the jury is made by a DUI prosecutor based on the officer’s ability in this regard, an experienced DUI attorney will argue that the officer’s opinion deserves to carry no special weight.

A Law Firm Focusing on DUI Defense

The DUI Clinic is committed to defending people who have been charged with a DUI offense. Our Kansas City drunk driving attorney has represented people in the entire Kansas City metro area and throughout the states of Kansas and Missouri for more than more than 15 years. Our extensive knowledge of these states’ laws concerning DUI charges and DUI defense has allowed us to seek positive resolutions for countless clients.

Contact The DUI Clinic by calling us at 913-262-4444, toll free at 888-4-DUI-CLINIC.

Kansas City DUI/DWI Field Sobriety Testing Defense Strategy Explained By Kansas City DUI/DWI Attorney

March 10th, 2011

Field Sobriety Testing: The field sobriety test can actually consist of a number of tests, including walking in a straight line; counting backwards; touching one’s nose while one‚Äôs eyes are closed; reciting the alphabet; and tracking a moving flashlight with one’s eyes. The police officer is testing the motorist for the effects of alcohol or drugs, but also gathering evidence that could be used in court.¬† All of these tests have a significant rate of false positives and some are not even sanctioned as a reliable indicator of intoxication.¬† An experienced DUI attorney may successfully challenged field sobriety tests on the basis of many factors including bad weather, language barriers, officer prejudice, medical conditions, obesity or physical disability, lack of certification to perform the tests, incorrect selection, administration or scoring of the tests and other arguments.

A Law Firm Focusing on DUI Defense

The DUI Clinic is committed to defending people who have been charged with a DUI offense. Speak to an experienced Kansas City DUI attorney that has represented people in the entire Kansas City metro area and throughout the states of Kansas and Missouri for more than more than 15 years. Our extensive knowledge of these states’ laws concerning DUI charges and DUI defense has allowed us to seek positive resolutions for countless clients.

Contact The DUI Clinic by calling us at 913-262-4444, toll free at 888-4-DUI-CLINIC.

Kansas City DUI Lawyer Discusses Defense Strategy No Impairment of Reasoning Skills

March 5th, 2011

No Impairment of Reasoning Skills: Research shows that physical impairment from alcohol does not occur until after mental impairment.  The police officer may testify that you were mentally coherent and both understood and answered the officer’s questions and followed directions.  Based on scientific research, if you were not mentally impaired, then you could not have been physically impaired by alcohol.  A DUI defense attorney will argue that the officer’s observations suggesting impairment must be linked to something other than intoxication including such factors as illness, physical disability or injury, advanced age, excessive weight, anxiety, or poor coordination.

A Law Firm Focusing on DUI Defense

The DUI Clinic is committed to defending people who have been charged with a DUI offense. Our Kansas City DUI lawyers have represented people in the entire Kansas City metro area and throughout the states of Kansas and Missouri for more than more than 15 years. Our extensive knowledge of these states’ laws concerning DUI charges and DUI defense has allowed us to seek positive resolutions for countless clients.

Contact The DUI Clinic by calling us at 913-262-4444, toll free at 888-4-DUI-CLINIC.

Kansas City DUI Defense Attorney Discusses DWI Defense Strategy – Failure to Give Miranda Warnings

February 26th, 2011

Failure to Give Miranda Warnings: Once the officer has arrested you or has made it clear that you are not free to leave, the officer must give you the Miranda warning which advises you of such critical rights as your right to have an attorney present during questioning and your right to remain silent.¬† If the officer fails to give you the Miranda warnings once you are ‚Äúin custody‚ÄĚ (i.e. under arrest or not free to leave), any incriminating statements or spontaneous statements may be suppressed if your DUI defense attorney files a motion to suppress.

A Law Firm Focusing on DUI Defense

The DUI Clinic is committed to defending people who have been charged with a DUI offense. Our Kansas City DUI defense attorney has represented people in the entire Kansas City metro area and throughout the states of Kansas and Missouri for more than more than 15 years. Our extensive knowledge of these states’ laws concerning DUI charges and DUI defense has allowed us to seek positive resolutions for countless clients.

Contact The DUI Clinic by calling us at 913-262-4444, toll free at 888-4-DUI-CLINIC.

Defense Strategies in a DUI Case Arising Out of Mistakes during the Arrest Process in Kansas City

February 5th, 2011

If you have been drinking, a DUI/DWI stop can be a stressful and disheartening experience. However, an experienced Kansas City DUI defense attorney may employ a number of defense strategies that can be used effectively to seek a reduction or complete dismissal of the charges. Many of these defenses may be based on mistakes by the officer during your DUI stop and the subsequent arrest process. These are effective defense strategies that may keep you out of jail and allow you to avoid the serious consequences of a DUI conviction. An experienced DUI defense attorney may challenge the proper administration of sobriety tests, chemical tests, probable cause and search and seizure procedures. Mistakes by the officer in the mechanical or procedural aspects of your initial stop or subsequent arrest can form the basis of a successful DUI defense. We have provided an outline of some of these key defenses below.

Legal Basis for Stop: A police officer cannot stop you without ‚Äúreasonable suspicion‚ÄĚ based on specific facts. The stop cannot be arbitrary or simply based on a hunch. The officer must either stop you because you are observed violating a law or because the officer has reasonable suspicion that a violation of law is being committed. An officer may stop you because he observes you violate a law that suggests you are intoxicated or for a completely unrelated violation of law. If you are stopped for having a taillight out, the question will arise whether the officer can articulate specific observations during the stop that provided the officer with reasonable suspicion that you were driving under the influence, such as, red watery eyes, slurred speech, an admission that you had been drinking or slurred speech. These observations may provide the officer a reasonable suspicion of DUI so that he may request that you perform field sobriety tests. If you are pulled over for weaving between lanes, and the officer simply smells the odor of alcohol, these facts taken together may be sufficient to meet the reasonable suspicion requirement. If the officer cannot articulate specific facts that explain the officer‚Äôs basis for stopping you or requesting field sobriety tests, an experienced DUI defense attorney may use this to have your case dismissed or the charges reduced.

Improper Use of Speeding as Basis for Reasonable Suspicion: An officer may claim the reason for your initial stop was that you were speeding. While this is a legitimate basis for an initial stop it is in no way evidence of intoxication. Studies show that a driver is no more likely to speed when intoxicated than when sober. This means that the officer may not use evidence of speeding as part of his reasonable suspicion to conduct a DUI investigation. If the officer does not have sufficient other evidence to establish reasonable suspicion that you were driving under the influence, your DUI defense attorney may be able to suppress evidence obtained based on a lack of reasonable suspicion.

No Impairment of Reasoning Skills: Research shows that physical impairment from alcohol does not occur until after mental impairment. The police officer may testify that you were mentally coherent and both understood and answered the officer’s questions and followed directions. Based on scientific research, if you were not mentally impaired, then you could not have been physically impaired by alcohol. A DUI defense attorney will argue that the officer’s observations suggesting impairment must be linked to something other than intoxication including such factors as illness, physical disability or injury, advanced age, excessive weight, anxiety, or poor coordination.

Field Sobriety Testing: The field sobriety test can actually consist of a number of tests, including walking in a straight line; counting backwards; touching one’s nose while one‚Äôs eyes are closed; reciting the alphabet; and tracking a moving flashlight with one’s eyes. The police officer is testing the motorist for the effects of alcohol or drugs, but also gathering evidence that could be used in court. All of these tests have a significant rate of false positives and some are not even sanctioned as a reliable indicator of intoxication. An experienced DUI attorney may successfully challenged field sobriety tests on the basis of many factors including bad weather, language barriers, officer prejudice, medical conditions, obesity or physical disability, lack of certification to perform the tests, incorrect selection, administration or scoring of the tests and other arguments.

Officer Overestimated Level of Intoxication: A study conducted by Rutgers University found that police were no more accurate at determining intoxication levels than social drinkers. Police officers like social drinkers accurately judge whether a person is intoxicated only 25% of the time. When an appeal to the jury is made by a DUI prosecutor based on the officer’s ability in this regard, an experienced DUI attorney will argue that the officer’s opinion deserves to carry no special weight.

Legal Standard for Breathalyzer Test: The officer must have ‚Äúreasonable suspicion‚ÄĚ that a driver is intoxicated to request a Breathalyzer test. If you were stopped for having a taillight out and did not admit having anything to drink, the officer must develop evidence to justify a Breathalyzer test. You have the absolute right to decline to perform field sobriety tests and should politely do so. They are subject to the officer‚Äôs subjective judgment, and the officer has typically already determined that he believes you are under the influence. The only purpose of the field sobriety test is to develop ‚Äúprobable cause‚ÄĚ to support a DUI arrest. This means if the officer did not observe you driving erratically, did not observe any specific signs of intoxication, such as, red eyes, slurred speech, the smell of alcohol, etc and you refuse field sobriety testing, the officer probably lacks probable cause to conduct a breath test. If the officer directs you to take a breath test anyway, your attorney can seek to have the breath test results suppressed.

Failure to Give Miranda Warnings: Once the officer has arrested you or has made it clear that you are not free to leave, the officer must give you the Miranda warning which advises you of such critical rights as your right to have an attorney present during questioning and your right to remain silent. If the officer fails to give you the Miranda warnings once you are ‚Äúin custody‚ÄĚ (i.e. under arrest or not free to leave), any incriminating statements or spontaneous statements may be suppressed if your DUI defense attorney files a motion to suppress.

These are just a few of the mistakes that a police officer may make during an initial or DUI arrest that may form the basis for a valid defense. An experienced DUI attorney will be familiar with these defense strategies and can use this information to negotiate a reduction in charges or to seek acquittal at trial. If you have been arrested for DUI, you should seek an experienced DUI defense attorney who will work to protect your rights and your freedom.

A Law Firm Focusing on DUI Defense

The DUI Clinic is committed to defending people who have been charged with a DUI offense. Our lawyers have represented people in the entire Kansas City metro area and throughout the states of Kansas and Missouri for more than more than 15 years. Our extensive knowledge of these states’ laws concerning DUI charges and DUI defense has allowed us to seek positive resolutions for countless clients.

Contact The DUI Clinic by calling us at 913-262-4444, toll free at 888-4-DUI-CLINIC.