The story of a Kansas University student who had both legs amputated after being struck by a drunk driver is putting a spotlight on Kansas’ DUI laws. 18-year-old Colby Liston is learning to walk again with prosthetic legs and accused drunk driver Julian Kuszmaul is facing a maximu of one year in jail, which Liston’s family believes is not justice for Colby.
Kuszmaul is being charged with misdemeanor DUI. The D.A. ruled there was no recklessness on part of Kaszmaul. A decade ago, Kansas legislators repealed a law which would have allowed battery charges for DUI cases that involved injuries.
The Kansas Supreme Court has a case law which states, “additional evidence, beyond evidence that an accused was driving under the influence of alcohol, is necessary to create probable cause for reckless aggravated battery charges. Simply driving under the influence of alcohol does not, standing alone, amount to reckless behavior.” [State v. Huser, 265 Kan. 228.]
In a press release from Charles Branson, the Douglas County D.A., he states that the D.A.’s office disagrees with the Supreme Court’s interpretation but is bound to follow it.
Liston’s family responded to Branson’s reasoning on their Facebook account, which said, “In order to change or get a new decision a prosecutor or DA needs to present another case. We feel Colby’s accident is a perfect case to present in order to get the case law changed. So it’s not a matter that DA Branson CAN’T charge aggravated battery it’s that he WON’T.”
Missouri v. McNeely is scheduled for argument before the Supreme Court tomorrow. The case involves a Missouri man who had his blood drawn during a DWI arrest without giving consent. Missouri is one of 21 states that allows for blood tests without a warrant in drunk driving cases.
The DWI law went into effect on August 28, 2010. Patrolman Mark Winder arrested Tyler McNeely on October 3, 2010 for DWI. He had read an article in Traffic Safety News by a prosecutor who suggest that no warrant was needed for a blood draw of a non-consenting DWI suspect. Relying on this, Winder took McNeely to a local hospital to have his blood drawn without first obtaining a warrant.
McNeely argues that a warrantless blood draw is a violation of one’s Fourth Amendment rights to be free of search and seizure. Missouri asserts that allowing warrantless blood draws for DWI investigations allows the state to effectively enforce drunk driving laws. Additionally, Missouri states that without an expedient blood test, the alcohol in a person’s blood stream could dissipate and destroy evidence.
According to the Christian Science Monitor, attorney generals from 32 states, the District of Columbia, and the Obama Administration are siding with Missouri, and are urging the Supreme Court to conclude that warrantless blood draws are not in violation of the Fourth Amendment.