Kansas DUIs

A Kansas DUI is defined as having a blood alcohol level of .08% or higher. If you are a first time offender, you will be facing fees and possibly some jail time. You need to talk to a lawyer about your Kansas DUI in order to protect your right to drive and to get you the least amount of jail time possible. You'll be facing both a criminal and a civil case, and your right to drive is at risk. You only have ten (10) days after being arrested to request a hearing to save your drivers license so time is certainly of the essence.

Kansas Drivers License Revocation

One thing you face when facing a DUI case is having your driver's license revoked. This can be done in both your criminal and your civil case. If you fail a breath test, you will face your license being revoked for a month to a year. When you face your civil case, or "administrative hearing", you can challenge this suspension. Also, your driver's license cannot be suspended until you have been given this hearing, provided you request the hearing in the ten day time period.

If you are convicted of a Kansas DUI, you will lose your license for 30 days. After that you can only drive to work and school for 330 days. To get your license back you must pay $100, and the suspension will show on your permanent driving record. 

Jail Time and Fines for Kansas DUI

With a Kansas DUI case you are also facing jail time and fines. For first offenders, the jail time is at least 48 hours. You could be given up to 6 months incarceration time. This can be reduced or elminated if you serve 100 hours of community service time, which is unpaid.

You can expect to pay between $500 and $1000 in fees. You will also be charged for the education and evaluation requirements you face. Finally, you will pay between $10 and $100 in court costs.

Kansas DUI Penalties

First Offense

- 48 hours to 6 months in jail or 100 hours of community service

- Fines between $500-$1,000 

- Loss of driver's license for 30 days

- Alcohol evaluation and treatment programs

Second Offense DUI Penalties

- Jail time of 90 days to 1 year (5 day mandatory minimum and house arrest possible after 48 hours)

- Fines between $1,000 and $1,500

- Loss of driver's license for 1 year

- Ignition interlock system required after the 1 year license suspension

- Mandatory Alcohol Evlaluation and Treatment program

Third Offense DUI Penalties

- 90 days to 1 year in jail

- Fines between $1,500 and $2,500

- Loss of driver's license for 1 year

- Mandatory Alcohol Evaluation and Treatment

- Ignition interlock system required after the 1 year license suspension period

Fourth Offense DUI Penalties

- 90 days to 1 year in jail

- $2,500 fine

- 1 year post release supervision

- Loss of driver's license for 1 year

- Mandatory Alcohol Evaluation and Treatment

- Ignition interlock system required after the 1 year license suspension period

Kansas Fifth or Subsequent Offense DUI Penalties

- 90 days to 1 year in jail

- $2,500 fine

- 1 year post release supervision

- Permanent license revocation

- Mandatory Alcohol Evaluation and Treatment

___________________________________________________________________________________________________________________________________________________________________________

Standardized Field Sobriety Testing: Learning from Our Mistakes

The purpose of this paper is to examine whether there was a significant difference between the NHTSA/IACP standardized administrative procedures learned by officers in the basic SFST practitioner course and the manner in which these same officers administer the SFST procedures in the field. Furthermore, if there is a significant difference from the standardized NHTSA/IACP approved procedures, what elements had the most significant deviations. This examination was based on more than three hundred and fifty evidentiary videotapes which were analyzed over a four year period. The benefit of this analysis is to identify the overall rate of compliance as well as identify contributing factors to any non-compliance. By identifying proper and improperly administered elements of the SFST’s, it is believed that a course of correction can be undertaken in order to eliminate officer error while administering SFST’s in enforcement settings.

Introduction/Background

In 1977, the initial study which served as the foundation for today’s standardized field sobriety tests (SFST) that officers use in the field was published. The study, which was conducted by the Southern California Research Institute (SCRI) and funded by a grant from the National Highway Traffic Safety Administration (NHTSA), analyzed several field sobriety tests to determine which were the most reliable in identifying persons who were intoxicated at blood alcohol concentrations (BAC) above 0.10 % ¹.

This study and similar, subsequent research determined that the horizontal gaze nystagmus (HGN), walk and turn (WAT), and one-leg stand (OLS) tests were the most sensitive evaluations for officers to use to establish a relationship between intoxication and alcohol use ^{1, 2, 3}. Through this research, these three sobriety tests were determined to be the most reliable in identifying persons who were either above or below the per se legal limit ^{2, 3, 7}. The tests serve as the core of the NHTSA SFST training program curriculum. Additionally, this foundational research was conducted specifically to set standards in the methods in which the SFST test battery is to be administered and the manner in which the tests are to be scored ^2,3.

The HGN test is an evaluation that measures jerking in the eyes as they move back and forth, laterally across a horizontal plane in front of the tested subject’s field of view. The test is designed to assist the evaluator in determining if there is noticeable jerking as the eyes continuously track a stimulus at three different speeds/movements. The three horizontal movements allow for the evaluator to identify clues or indicators of possible intoxication: (a) lack of smooth pursuit; (b) distinct and sustained nystagmus at maximum deviation; and (c) the onset of nystagmus prior to 45 degrees. In each phase of the horizontal movement, the evaluator determines if the eyes jerk in a noticeable and distinct manner. If so, the jerking is presumed to have been caused by alcohol and the officer scores the observational clue for each eye in which the clue was visible. A score of four or more clues alerts the officer to the possibility that the tested person may be intoxicated above a 0.08% BAC ^{7, 8, 9}.

The walk and turn test (WAT) is one of two identified divided attention (psychophysical) tests used at roadside to assess a driver suspected of DWI. This test requires the subject to take nine heel to toe steps along an imaginary line, turn by taking small steps and then return back down the line taking nine heel to toe steps. The subject may not break the instructional stance, start the test too soon, step off the line, stop while walking, miss touching heel to toe as they walk, take more or less than nine steps up and back down the line, use the arms to aid with balance or turn improperly ⁸. Based upon conducted research, persons who scored two or more clues on the WAT test had a high probability of having a BAC of above 0.08% ⁸.

The one-leg stand test (OLS) is the second divided attentions test and requires the evaluated subject to stand on one leg while counting aloud by 1000’s until told to stop. The OLS test is a timed test in which the officer keeps thirty seconds. The evaluated subject is required to maintain their balance on one leg without placing their raised foot to the ground. The evaluated subject cannot sway, hop, use their arms to aid with balance or place the raised foot to the ground. The research conducted indicated that persons who scored two or more clues on this test had a high probability of having a BAC of above 0.08% ^{8, 9}.

As a result of the research conducted, the HGN, walk and turn, and one-leg stand test were standardized into a systematic method of evaluation that officers could easily be administered at roadside ^{4, 5 ,6}.

Results

Between January 1, 2003 and December 31, 2006, data was collected from three hundred and sixty (360) recorded evidentiary videotapes. Each of the videotapes had been accepted by the states prosecutor office and assigned to the appropriate court for prosecution. The tapes were analyzed to determine whether the SFST’s conducted by trained officers in enforcement settings were correctly administered according to NHTSA/IACP training standards. The analysis of the videotapes was conducted by researchers who have completed the NHTSA/IACP approved SFST practitioner course, SFST instructor course, and the conducted SFST train-the-trainer courses.

In order for a videotape to be included in the research sample, several conditions had to be met. First, each videotape must have recorded all three SFST’s. Second, each field test had to be recorded in its entirety through video and audio. Finally, each videotape had to have had a clear audio record of the conversation that transpired between the administering officer and the suspected impaired driver. The audio had to be clear and audible so that all instructions and comments between the evaluator and subject could be heard and understood.

The standardized administrative procedures for the HGN, WAT and OLS tests was analyzed and broken down into individual instructional elements. Each tape was analyzed for the presence or absence of each of the elements in the officer’s administration of the three tests. The “skill” competencies were also identified in order to determine if the officer followed standardized procedures for the “physical” requirements of the test. These physical requirements include but were not limited to: proper stimulus placement, movement of the stimulus (speed), and demonstration of walking, turning, and standing. Environmental conditions (rain, wind snow, etc.) that occurred during the SFST’s performance was also reported however, no analysis was conducted to determine if these varying conditions affected the outcome of the field test results.

The primary objective on this analysis was to identify any deviations which were made from the NHTSA/IACP SFST standardized procedures. Each evaluation was reviewed according to these elements and summarized across all of the evaluations. The proficiency and error rates were calculated based on number of correct and incorrect instructional elements present. These rates, according to the individual instructional elements, are summarized in the tables presented below.

Horizontal Gaze Nystagmus (HGN). The HGN test procedures were broken down into individual instructional elements and then analyzed to determine if each had been correctly administered as part of the standardized battery of instructions outlined in the NHTSA SFST curriculum package. In addition to the instructional elements, the physical elements such as whether the officer properly followed standards for placement and movement of the stimulus during the administration of the test and conducted the SFST’s in a fair environment free of optokinetic influences or other conditions that might impair a person’s performance. Table 1 represents the individual elements that were analyzed within the body of the NHTSA/IACP approved HGN test and the identified proficiency percentage and rate of error.

Table 1: HGN Test Administrative Elements and Proficiency Percentages

Of the three hundred and sixty (360) evaluations administered, the officers followed NHTSA standardized procedure in only twenty-four (24) evaluations. This represents 7% of all HGN assessments conducted. The officers using the HGN test as a single test measure of sobriety were incorrect in their administration of the test 93% of the time.

Walk and Turn Test (WAT). The WAT test was broken down into individual instructional elements and then analyzed to determine if each had been correctly administered as part of the standardized battery of instructions outlined in the NHTSA SFST curriculum package. Additionally, the physical aspects of the WAT test were analyzed to determine whether officers properly followed NHTSA/IACP standards regarding the demonstration of walking and turning during the test as well as whether they administered the WAT test in a fair environment free of conditions that could adversely impact performance. Conditions such as poor testing surface, weather conditions and issues with shoes were all areas of interest. Table 2 represents the individual elements that were analyzed within the body of the NHTSA/IACP approved WAT test and the identified proficiency percentage and rate of error.

Table 2: WAT Test Administrative Elements and Proficiency Percentages

With respect to the WAT test, the officers followed NHTSA standardized procedure in only sixty-seven (67) evaluations. This represents 19% of all WAT test assessments conducted during the sample period. The officers using the WAT test as a single test measure of sobriety were incorrect in their administration of the test 81% of the time.

One Leg Stand (OLS) Test. The One-Leg Stand (OLS) test was the third set of data to be analyzed. The OLS test procedures were broken down into individual instructional elements and then analyzed to determine if each had been correctly administered as part of the standardized battery of instructions outlined in the NHTSA SFST curriculum package. Additionally, physical aspects of the OLS test were analyzed to determine whether or not officers properly followed NHTSA/IACP standards regarding the demonstration of the balance and counting portion of the test. Officers were also analyzed to determine whether or not they administered the OLS test in a fair environment free of conditions that could adversely impact performance. Conditions such as poor testing surface, weather conditions and issues with shoes were areas of interest. Table 3 represents the individual elements that were analyzed within the body of the NHTSA/IACP approved OLS test.

Table 3: OLS Test Administrative Elements and Proficiency Ratings

The officers followed NHTSA standardized procedure in one hundred seventy nine (179) of the three hundred sixty evaluations. This represents 50% of all OLS assessments that were conducted. The officer’s using the OLS test as a single test measure of sobriety, were incorrect in their administration of the test 50% of the time.

SFST’s as a Three Test Battery. Out of a total of three hundred sixty (360) evaluations that were administered (three test battery); the officers followed all of the NHTSA standardized procedures in only ten (10) evaluations. This represents 3% of all tests that were correctly administered as a battery of three tests. The officers using the HGN, WAT, and OLS tests as part of a three test battery for measuring sobriety were incorrect in their administration of one or more tests 97% of the time.

Discussion

Competency Based Training. The SFTS training program has a long history of being instructed to law enforcement officers throughout the United States as well as internationally ⁹. The SFST training program has been predominantly provided using traditional classroom methods. In these types of traditional educational systems, learning emerges over time through teacher-centered instructional methods which are, often times, in passive learning settings for the students ¹⁰. In these passive learning settings, students become accustomed to accepting their lecture, notes, and their textbook passages as “truth.” By instructing the SFST course using traditional classroom methods, it is common for students to learn without ever having critically challenged the appropriateness of the standard or procedures learned in varying contexts.

Additionally, evaluation of traditional classroom methods typically involves administering knowledge-based written examinations ¹¹. While knowledge-based assessments can certainly be used in to measure mastery of information, the primary focus in SFST training should be on measuring mastery of skills which are taken away from the training in order to be employed in the field. While it is true that the SFST program has some of its learning objectives directed toward the practice of learned skills (practice sessions and wet workshops), the majority of the training is communicated through formal teacher-learner relationships. With this being said, instructors should consider the benefits of “stepping away” from the traditional classroom paradigm in order to consider how SFST training might be more suitable to a competency based learning platform.

Competency-based training for SFST’s is training based upon the learner’s ability to demonstrate attainment and mastery of specified skills performed under certain conditions to specific standards (the skills then become competencies) ^{10, 11}. Since the SFST training is best suited for competency based training methods of learning, progress can be measured by mastery of specific knowledge and skills in a learner/participant centered training environment.

Conclusions

Based upon the quantitative data collected as part of this study, it can be presumed that officers who have attended SFST training appear to be able to recall some of the elements of administering the tests better than others. It was evident that the majority of officers lack the skills to physically administer the SFST’s, especially with the HGN test. Some possible reasons for this could be attitude toward enforcement, length of time since last training, or carelessness to name a few. Whatever the reason, there does appear to be significant room for improvement, specifically where applied skills are concerned.

However, the data collected supports a theoretical position that current training utilizing traditional classroom methods may not adequately address training needs when it comes to transfer of learning from the class room to the enforcement environment. As a result there appears to be a gap between how the officer learns to administer the SFST’s in the classroom versus how they actually administer the SFST’s in the field.

Creating that connection between formal classroom training and practice in enforcement settings is the basis for effective transfer of knowledge ^{10, 11}. When the administration of the test strays from standardized procedures the test loses its sensitivity and the integrity of the assessment is compromised ⁸. This is especially true if the element of the test that is deviated from most often affects the clue(s) that are being assessed for. Consequently, the problems that have been identified from this research indicate that alternative teaching modalities should be considered and explored in order to address the identified problem areas with regard to administration.

References

1 Burns, M., & Moskowitz, H. (1977) Psychophysical Tests for DWI Arrests. Washington, DC: U.S. Department of Transportation National Highway Traffic Safety Administration.

2 Tharp, V., Burns, M., & Moskowitz, H. (1981) Development and Field Test Psychophysical Tests for DWI Arrests. Washington, DC: U.S. Department of Transportation National Highway Traffic Safety Administration.

3 Anderson, T. E., Schweitz R. M., & Snyder, M. B. (1983) Field Evaluation of a Behavioral Test Battery for DWI. Washington, DC: U.S. Department of Transportation National Highway Traffic Safety Administration.

4 Anderson, E.W. & Burns, M. (1995) A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery. Washington, DC: U.S. Department of Transportation National Highway Traffic Safety Administration.

5 Dioquino, T., Burns, M., Fiorentino, D., Brown, T., Gguyen, S., & Seymour, J. (1997) A Florida Validation Study of the Standardized Field Sobriety Tests Battery. Washington, DC: U.S. Department of Transportation National Highway Traffic Safety Administration.

6 Stuster, J. & Burns, M. (1998) Validation of the Standardized Field Sobriety Test Battery at BAC’s Below 0.10 Percent. Washington, DC: U.S. Department of Transportation National Highway Traffic Safety Administration.

7 Dietrich, J. J., & Frost, J., (1999) Horizontal Gaze Nystagmus: The Science and the Law a Resource Guide for Judges, Prosecutors and Law Enforcement. Washington, DC: Washington, DC: U.S. Department of Transportation National Highway Traffic Safety Administration.

8 U.S Department of Transportation National Highway Traffic Safety Administration (2006). Standardized Field Sobriety Testing Student Manual. National Technical Information Service, Richmond, Virginia.

9 Kwasnoski, J. B., Partridge, G. N., & Stephen, J. A. (2000). Criminal and traffic law series: Officer’s DUI Handbook. New York: Lexis Publishing.

10 Swanson, R.A. & Holton, E.F. (2001) Foundations of Human Resource Development. San Francisco: Berrett Koehler.

Rothwell, W, J. & Kazanas, H.C. (1998). Mastering the Instructional Design Process. San Francisco, Jossey-Bass.

-----------------------------------------------------------------------------------------------------------------------------------------------------

Plaintiffs Lawyers See Broad Impact of High Court's Decision on Detainees

A U.S. Supreme Court ruling on Monday could make it significantly harder for plaintiffs in a broad range of cases to survive defendants' motions to dismiss, according to experts in civil procedure.

"This is very bad for plaintiffs," said Alan Morrison, former head of Public Citizen Litigation Group, reacting to Monday's 5-4 decision in Ashcroft v. Iqbal (pdf). The ruling dismissed a complaint filed by a Pakistani Muslim against former Attorney General John Ashcroft seeking to hold Ashcroft liable for policies that led to the roundup of aliens including Iqbal following the Sept. 11, 2001, terrorist attacks.

Headlines have focused on that aspect of the ruling. But litigators are focusing on the broader impact of what the decision said about so-called "pleading standards" in civil litigation similar to Iqbal.

The Court's ruling, written by Justice Anthony Kennedy, said plaintiff Javaid Iqbal's complaint "fails to plead sufficient facts to state a claim" against Ashcroft and FBI Director Robert Mueller III, also a named defendant. In so doing, Kennedy applied -- and some say expanded on -- the justices' 2007 decision in Bell Atlantic Corp. v. Twombly (pdf). That ruling, in an antitrust case, required that initial pleadings state a claim that is "plausible on its face" and is not simply a statement of the elements of a cause of action or reaches unsubstantiated conclusions. Kennedy labeled a statement in Iqbal's pleading that Ashcroft was the "principal architect" of the policies at issue as "conclusory and not assumed to be true."

Since Twombly, there has been a dispute over whether it applies beyond the antitrust setting, but Iqbal now makes broader application of the rule clear.

"That debate is over" in the wake of Iqbal, says Jane Willis, a partner at Ropes & Gray in Boston. "The decision gives district court judges quite a bit more guidance" on how much factual information pleadings must contain.

Willis said all kinds of business disputes, especially those in which vicarious liability is claimed, are now governed by the Twombly standard. She said corporate defendants would now be more likely to challenge pleadings in lawsuits, seeking dismissal so as to avoid costly discovery in marginal cases. "A lot of CEOs don't like to be deposed," Willis said.

Morrison, who will soon become a dean and professor at George Washington University Law School, agrees. "The ruling in Iqbal is an invitation to raise a Twombly issue in every case," he said, mentioning employment discrimination and products liability as prominent examples of areas where they might be filed the most. "It's very troubling."

In the Iqbal case, Morrison points out, the pleading had considerable detail, and Iqbal could not have made a more detailed pleading than he did.

Michael Winger of Washington-based Covington & Burling's New York office, who is co-counsel in a class action related to the Iqbal litigation, said the pleading was based on "over a hundred depositions, giving us the kind of detail the Supreme Court has now said plaintiffs need. But few plaintiffs get access to such details. ... We fear that this case will keep many victims of governmental discrimination and abuse from ever getting their day in court."

University of Richmond School of Law professor Carl Tobias on Tuesday said Iqbal is so significant that it in effect rewrites Rule 8 of the Rules of Civil Procedure. "Judges will have more discretion to dismiss cases earlier," Tobias said.

Morrison added that applying Twombly broadly follows the conservative Court's trend of reducing access to the courts through tightening procedural rules. "What they are doing in pleadings is reminiscent of what they have done to standing," he said.

Ian Millhiser, a lawyer with the National Senior Citizens Law Center, called Iqbal "a sweeping decision with the potential to impact every plaintiff in a civil lawsuit," adding that it has the effect of "abandoning the liberal pleading rules which have prevailed for decades."

Justice David Souter, who wrote the Twombly decision in 2007, dissented from Kennedy's majority, writing that Kennedy "misapplies" the decision. Justice Stephen Breyer also dissented, stating that the majority's interpretation was unjustified.

Posted from LAW.com