Being arrested for driving under the influence can be a horrifying experience. Whether you have been arrested on the Kansas or the Missouri side, a DUI attorney can help soften the blow and guide you through the process. For a free consultation with a Missouri criminal defense attorney, call The Law Offices of Benjamin Arnold at (913) 777-HELP, or visit us on the web at kcdui.com.
I. The Initial Stop
The first step in a DUI prosecution is, of course, the initial stop of the driver. There are too many reasons for a possible traffic stop to mention- but in general, “reasonable suspicion” of any crime or traffic violation will give the police a valid reason to stop a driver. It is important to note that the burden for establishing reasonable suspicion for a stop is not the same as showing probable cause for an arrest. This standard was fleshed out by the United States Supreme Court in Terry v. Ohio, where the court found that reasonable suspicion requires that an officer conducting a stop rely on the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. 392 U.S. 1 (1968). What this means, is that there is a relatively low bar for establishing a legitimate reason to stop a vehicle, and that the police have some leeway and discretion in using pre textual stops to make DUI or DWI arrests.
Despite this, an experienced criminal defense or DUI attorney may be able to have the case dismissed if he is able to establish that the initial stop was illegal. The fourth amendment of the United States Constitution protects citizens against unreasonable search and seizure, and over the years, DUI lawyers have successfully argued a number of legal theories that result in case law for defending against a DUI or DWI charge. In certain cases, the “fruits” of the unlawful stop or detention can result in all of the evidence, such as field sobriety tests or blood or breath samples gathered during the stop being suppressed, which may lead to the prosecution dismissing the case in its’ entirety. Thanks to technology and modern police practices which include dash cams and body cameras, a good DUI lawyer will be able to identify any arguments to be made that a stop is illegal, and often will file a motion to suppress the evidence long before the case could be heard by a jury.
II. The DUI Investigation
After police pull over a driver, if they notice any indication of intoxication, such as erratic behavior, bloodshot eyes, or the odor of alcoholic beverages, they will shift from being interested in the traffic violation to conducting a DUI investigation. Often, a police officer will cut straight to the point, asking the driver how much they have had to drink tonight. A lot of drivers will make the fatal mistake of admitting to consuming alcohol, replying the typical answer- “two beers”. Realistically consuming two beers is unlikely to create behavior that will indicate impairment for the average adult, but people think this answer will help them because the police officer’s favorite motto is “honesty is the best policy”. Of course, I am not condoning lying to the police, but it is important to remember your right to remain silent. And no, the police are not required to read you your Miranda rights because a traffic stop is not a custodial interrogation per the meaning of the fifth amendment. The only information you need to give police is the information required by law for identification purposes, such as your drivers’ license, registration, and proof of insurance.
It is a common misconception that a driver is required to complete the field sobriety tests if asked by a law enforcement officer to do so. However, this couldn’t be further from the truth- you are not required to complete these tests, and it is in your best interest to refuse these. If a police officer has asked you to exit the vehicle, you are required to obey his lawful order, but you cannot be required to complete the field sobriety tests. Chances are, if the officer has reached this conclusion, he has already made the decision to make a DUI or DWI arrest, and he is just trying to gather additional evidence to use against you in a criminal DUI prosecution. For more information on field sobriety tests, including the horizontal gaze nystagmus (HGN), the walk and turn (WAT) and one leg stand (OLS), see my article FIELD SOBRIETY TESTS EXPLAINED.
Regardless of your submission or refusal of the field sobriety tests, if the officer has developed probable cause to make a DUI arrest, you will be likely taken to the police station where you will be given the option of a breath or blood test. This test, however, if you refuse, you will have your drivers license automatically suspended because of the implied consent law that you agreed to when you signed for your license. Note that an officer may mark you as a refusal even if you don’t flat-out refuse to submit to a blood or breath test. And no, you cannot argue that this is a violation of the fifth amendment privilege against self-incrimination, because the courts have articulated that such evidence is not testimonial, and thus not protected. Furthermore, even if the arrest takes place at 4:00 in the morning, the police may request a search warrant to be signed by a judge for a suspected DUI driver’s blood to be taken. A compulsory blood test is a very unpleasant event, and you may face worse civil consequences against your driving
privileges for the refusal anyways. While the legal limit in both Kansas and Missouri is .08, it is important to be aware that this is only required to prove the elements of a per se DUI or DWI offense. Even if you are below the legal limit, you may be charged and convicted of driving under the influence or while intoxicated.
III. Steps After the Arrest
Following a DUI arrest, the clock starts ticking with regards to the automatic suspension of your driving privileges. Upon your arrest, the police officer will confiscate your license and give you a paper which will serve as your temporary drivers license. Due process requires that you be given an opportunity to have a hearing before the state In Kansas, you have 14 days (see DC-27) to request an administrative hearing to contest your suspension, while in Missouri you have 15 days to request a hearing. It is in your best interest to promptly retain a Kansas City DUI criminal defense attorney to handle this for you. Because this is a civil hearing, you the burden of proof is lower requiring only a preponderance of the evidence as opposed to proof beyond a reasonable doubt required for a criminal conviction. It is worthy of noting that the civil proceedings against your license have no bearing on the criminal proceedings, and you may lose the civil hearing but win the criminal case, or vice-versa.
Once you have had the opportunity to consult with and retain a Kansas City criminal defense attorney, he or she will enter his appearance and be given a court date to appear on your behalf on an attorney’s docket. For a typical DUI, you will not be required to attend this court date, as your attorney can appear for you. After this hearing, the case will be continued for a later court date, the mean time during which your attorney will conduct discovery. Discovery is the process in which the attorney submits a records request to the arresting agency for the police report, audio or video recordings if applicable, and other evidence the state has to use against you at trial. Once your attorney receives this, they will be able to sort through the materials to determine any possible defenses to the charges, such as an illegal stop or improper alcohol testing procedures.
After discovery has concluded, and depending on the attorney’s conclusions based on the findings, there are a few different directions which the case could take. If there is reason to request a suppression hearing, the attorney may file a motion. This may result in the charges being dismissed if the evidence is successfully suppressed. However, it is important to understand the risks of a suppression hearing going sideways- often, the prosecution will be less willing to offer and accept a favorable plea deal if it seems you have wasted their time. Certain benefits, such as diversion or a suspended imposition of sentence (SIS) may be off the table as well. If your attorney determines that the evidence against you is sufficient and cannot find evidence to file a motion with merit, it may be advisable to apply for diversion if you are otherwise eligible.
IV. Pretrial Resolution of DUI or DWI Charges
Diversion, or a suspended imposition of sentence (SIS) is an alternative to traditional prosecution, which carries several benefits. If granted, the individual charged will have the opportunity to complete a probationary period which if successful will result in the dismissal of the charges with prejudice, meaning it will not be recorded as a conviction and you cannot be tried again for the same crime. Often times, if there are other charges associated with the arrest, such as drug possession or other traffic violations, the prosecutor will be willing to include them in the diversion agreement. Eligibility for diversion or SIS varies among jurisdictions, but is generally limited to first time offenders without aggravating circumstances such as a high BAC, property damage or bodily injury, or where a child was present. Common requirements for diversion participants include alcohol classes and treatment, attending a MADD victim impact panel, court costs, and refraining from the use of alcohol or illegal substances.
While diversion provides many benefits, it is important to note that it is not for everyone- especially the requirement to stay sober for the entire period, which is verified through urinalysis (UA) testing. To be granted diversion or SIS, the individual signs away certain rights as consideration for the benefits. The most important to be aware of are the right to a speedy trial, and the stipulation of facts contained in the arresting officer’s report. Because the prosecution is granting a continuance on the charges when diversion is granted, you must give up the right to be tried within a reasonable time. This is because if you fail to meet the terms required, the prosecutor may file a motion to revoke diversion, which if granted will subject you to prosecution on the original charges, which is not a violation of double jeopardy. Furthermore, it is almost much more likely the prosecution will be able to achieve a conviction on the stipulated facts, a common waiver of rights made under a contract of diversion. Prior diversion agreements may be used as evidence of awareness of the risks of drunk driving in a subsequent trial for DUI or DWI, particularly to prove a required element such as recklessness for a more serious charge where death or bodily injury is involved. SEE State v. Claerhout. Even if the charges are dismissed through diversion, certain agencies will be able to see the charges which can be used to enhance the severity of subsequent offenses.
If you are ineligible for diversion, you may be able to seek a plea deal, which will result in a conviction on your record, but with less consequences and cost than taking the matter to trial. Very few misdemeanor DUI prosecutions make it all the way to trial, as most are resolved prior to trial in the interests of reducing costs and court time for a resolution. A guilty verdict in trial will often result in more serious punishment, known as the “jury tax” among those familiar.
V. The Takeaway
A DUI is not the end of the world, but it can have immediate and lasting consequences and be a giant hassle if you do not address it properly and keep the court satisfied. If you have been arrested for a Kansas City DUI or DWI, it is in your best interests to act quickly and secure competent legal representation. For a free consultation from an affordable DUI lawyer, contact The Law Offices of Benjamin Arnold by phone at (913) 777-HELP, by email at ben@kcdui.com, or by visiting kcdui.com for more information.
