State Recommendations Report
12/82
SYNOPSIS OF THE FINAL REPORT
OF THE KANSAS GOVERNOR'S COMMITTEE ON
DRINKING AND DRIVING
Backgound
The tragic consequences of drunk driving have been identified by Governor John
Carlin as a major problem in Kansas. In response to this concern, in his 1982
State of the State Address, Governor Carlin committed Kansas to the
implementation of a plan to reduce the number of alcohol-related traffic
offenses. On March 9, 1982 the Governor's Committee on Drinking and Driving
was established to study the issue and subsequently make recommendations to
the Governor for use in future policy formulation. After reviewing the
literature and conducting eleven public nearings statewide, the Committee
delivered its final report, containing the package of recommendations, to
Governor Carlin on December 13, 1982.
Reducing the number of alcohol-related traffic offenses entails changing the
collective social attitude ("norm") that accepts the practice of drinking and
driving, as well as toughening the law. The Committee's recommendations are
based on the three major requirements for effective deterrence of drunk
driving: 1) a high level of public awareness about the issue; 2) the
percept i on that those who dri nk and dri ve wi 11 be apprehended; and 3) the
perception that those who are apprehended will suffer the consequences. It is
suggested that the recommendat ions be implemented as a comprehens i ve plan,
administered by a Drinking and Driving Coordinating Board comprised of
re 1 evant governmental agenci es and pri vate sector ent it i es. Although there
are no specific recommendations regarding funding for the State and local
governments to implement the plan, the need to explore various possibilities
is emphasized. One potential source of funding for the state is the federal
government, due to the passage of House Bill 6170 (amended) which was signed
by President Reagan on October 5, 1982. The intent of this law is to
encourage the estab 1 i shment of effect i ve a 1 coho 1 traffi c safety programs by
states; seed grants will be awarded to those states which adopt and implement
programs meeting the criteri a spec if i ed. The Committee took these criteri a
into consideration as the recommendations were developed. The recommendations
of the Committee are categorized as follows: Prevention - Education - Public
Awareness; Law Enforcement; Adjudication; the Legal Drinking Age; and
Senate Bill 699.
Review of the Recommendations by Category
A.
Prevention - Education - Public Awareness:
The major focus of attention in both oral and written testimony presented to
the Governor's Committee on Drinking and Driving was prevention through public
awareness. One-time campaigns will not work. Media programs and other
effective methods of informing and educating the public must be provided on a
cont i nua 1 bas is in order to persuade the dri vi ng pub'l i c to reduce al coho 1
consumption before driving. This list comprises the specific recommendations
for prevention of drinking and driving, with the initial two of primary
importance:
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1.
An on-going public information effort to inform and educate the
public about the drinking and driving effort should be implemented.
A statewi de program of long term education to prevent a 1 coho 1 and
other drug abuse, specifically focused on traffic safety, should be
mandated as a required part of the curriculum in kindergarten through
12th grade. The program would emphasize scientific information,
self-image enhancement, and life skills training. More generic
education should be provided at the lower grade levels, with traffic
safety information emphasized in junior high and high school.
2.
3.
Curriculum content relative to Alcohol Traffic Safety for private
drivers' education pupils/schools should be mandated.
4.
Alcohol and drug information and education should be provided for
college students.
5.
Comprehensive coverage of alcohol/drugs and driving should be
included in the Kansas Driver's Handbook, with provisions for failure
of the portion of the test covering that material to result in
withholding of the driver's license until an acceptable score is
achieved.
6.
Required alcohol and other drug education and training should be
provided by the state for all criminal justice personnel who work
with DUI offenders.
The Committee recognizes that it is more cost-effective to prevent the problem
than to pay for the damage caused to persons and property by dri nk i ng and
driving.
B.
Law Enforcement:
The public's perception of suffering the consequences, and to a lesser extent
the perception of apprehension, are inherently tied to law enforcement
practices. The m~ority of recommendations related to law enforcement
constitute a revised offender code which extends the amount of discretion that
criminal justice personnel can exercise. The chart attached to the end of
this synopsis presents the suggested changes in a format which makes their
interrelationships apparent, and includes some recommendations for changes in
Senate Bill 699. The Committee makes these proposals regarding law
enforcement:
1.
A new offense of Driving While Impaired (DWI) should be added.
Driving While Impaired would be a lesser offense than Drilving Under
the Influence, applying to persons whose blood alcohol content
(b.a.c.) was .05% or above, but less than .10%. Current;¡y reckless
driving is the charge that would be applied in such cases, although
it is not inherently an alcohol-related offense. The Committee
supports the option of considering all alcohol-related offenses in
determining the penalties for a Driving While Impaired or Driving
Under the Influence conviction. (The designation OWl throughout the
rest of this synopsis refers to Driving While Impaired.)
2.
A fourth alcohol-related offense in a five (5) year period should
constitute a Habitual Violators category, which would be a Class E
Felony.
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3.
There should be a minimum of ninety (90) day license suspension for
the first alcohol related offense, and a minimum of one (1) year
suspension for a second offense.
4.
The blood alcohol concentrations for Driving While Impaired and
Driving Under the Influence should constitute Per Se ev'idence of an
alcohol-related offense. The Per Se law raises the legal significance
given to standards for b.a.c. from prima facie evidence of being
affected by drinking alcohol to conclusive evidence of illegal alcohol
consumption when coupled with driving. Consequently, the need for
some of the more subjective methods of estab 1 i shi ng the offenses of
DWI and DUI (e.g., behavioral tests, slurred speech, etc.) is
eliminated, thus increasing the probability of conviction.
5.
An alcohol-related offense with property damage and/or personal
injury should be included in the law as a separate offense,
equivalent to either a Class A Misdemeanor or Class E Felony,
contingent upon the mitigating circumstances. In addition, the
alternative penalty of Restitution could be utilized.
6.
An alcohol-related offense with fatality(ies) should be incorporated
in the Revised Offender Code with a Class D Felony as the
corresponding classification.
7 .
Driving with a license that has been suspended due to an alcohol-
related offense should receive the same classification as the current
Driving on a Suspended license (Class B Misdemeaner), in conjunction
with the additional deterrent of Automafìcally Impounding the vehicle.
Anyone who refuses to have a breath analysi s when askea to do so by
the authorities should automatically lose his or her license for a
predetermined amount of time, such as ninety (90) days for a first
offense and one (1) year for a second offense. The benef i t of an
administrative hearing would be impermissable. A proCi~dure whereby
arresting officers would confiscate licenses and send them to the
Department of Motor Vehicles, with that Department returning them to
operators at the appropriate times, is suggested.
8.
9.
Written
license
Persons
license
issued.
consent for a breath test shoul d be stated on the dri ver I s
and signed as a part of the agreement to hold the 1 i cense.
refusing to sign their name to that clause on their driver's
would be denied the privilege to drive; no liŒnse would be
10.
Pre 1 i mi nary Bre ath Test i ng Procedures shou 1 d be ut i 1 i zed as a too 1
for determining probable cause in what appears to be an alcohol-
related offense. A preliminary breath test is an alternative or
addition to field sobriety tests for making arrest determinations.
The results of a preliminary breath test would not be admissable as
evidence, but the consequences of refusing to take a preliminary test
would be the same as for actual tests, and the fact that a person
refused to take the test would be admissable as evidence.
11.
Sanctions corresponding to those for refusal to take breath-tests for
alcohol consumption should be instituted for refusal to take tests
for other drug use, once such tests are developed and utilized.
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C.
Furthermore, after the tests are developed and utilized, driving
under the influence of (or impaired by) other drugs should be
included in the Offender Code, consistent with the alcohol provisions.
12.
The Records Keeping System should be improved so that it is
functional as a systematic mechanism for tracking prior offenses, and
as a permanent log of all alcohol-related offenses. Wherever the
records are stored, an optimal system will require that municipal
courts report appropri ate i nformat i on and 1 aw enforcement personne 1
have acceptable uniform reporting procedures. A national system
should be developed.
13.
Roadblocks should be utilized specifically for the purpose of finding
drinking drivers.
14.
The use of camera equipment to film persons during their field tests
is encouraged. Filming could be especially useful in cases where
drugs other than alcohol have been used, given that the breath test
does not work for other drugs and it is necessary to know what drug
to test for if blood tests are to be valuable.
15.
Obtaining equipment for the testing and laboratory analysis of
specimens in DUI (or DWI) cases, to be uti 1 i zed by 1 aw enforcement
personnel, is encouraged.
Adjudication:
The recommendations regarding the sentencing process include the concept of a
dram shop law, which would actually present ramifications for both law
enforcement and adjudication; the courts would probably be more directly
affected by it due to the civil liabilities that are inherent in the concept.
Adjudication might be expedited by taking these measures:
1.
A Dram Shop Law should be considered as a means to enhance the
comprehens i ve plan to deter drunk dri vi ng. The Dram Shop Law is a
concept providing for third party liability, wherein establishment
owners and potentially others (such as parents or party hosts) could
be held liable for personal and/or property damages for serving
alcoholic beverage(s) to an intoxicated person who subsequently
caused such damages, wi th hi s/her i ntox i cat i on a contri but i ng
factor. The laws Kansas now has prohibit the sale of liquor to
intoxicated persons and minors, but civil liability is not explicit
in those laws. A training/education program for beverage sales
personnel might be implemented in conjuction with a Dram Shop Law.
2.
Judges from districts or areas where caseloads and dockets are
lighter should be utilized to help clear up heavy dockets in
districts other than their own; this is essentially "borrowing"
judges.
(Additional) night-courts should be used to alleviate lengthy court
dockets.
3.
4.
A judicial guidelines manual for
driving issues should be developed.
courts
all
dealing
with drunk
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D.
5.
Community Service, as an option in the sentencing process, should
become more widespread.
6.
Alternative detention facilities should be utilized for QUI (or DWI)
offenders, in addition to cooperative efforts among various
localities in the housing and incarcertion of such offenders.
Options include work-release centers, halfway houses, and juvenile
detention and holding centers.
7 .
Centralized minimum security (or non-security)
operated by either the state or local governments.
DUI (or DWI) laws in Kansas should apply to juveniles consistent with
their application to adults.
units
should
be
8.
9.
Juveniles who are incarcerated for traffic offenses should be
completely separated from adult offenders. The standards for
separation should achieve complete isolation from adult offenders:
not just physical separation with bars between cell blocks, but sight
and sound separation as well.
10.
A uniform definition of Indigent or Indigency should be developed.
It is reasonable to assume that the criteria for determining
Indigency in many criminal cases would not be appropriate for DUI
cases. The definition and application procedure would be a logical
part of the recommended Judicial Guidelines Manual.
Legal Drinking Age:
Determining a recommendation in regard to the minimum legal age for purchasing
alcoholic beverages was the most difficult part of the Committee's task. The
drinking age is a controversial and emotional issue, with no simple
solutions. From the Committee's perspective, the question of ~~hether the
legal drinking age should be changed is still unanswered.
The legal drinking age was not a major topic of concern in the testimony
presented at the public hearings. Based on what was stated in the testimony,
it is impossible to reach a consensus about what should be done. Furthermore,
the literature on the subject is confusing; at best it can legitimately be
purported that the evidence is suggestive, but not conclusive, that raising
the drinking age will reduce the statistics for alcohol-related traffic
accidents. Other possible causes for changes in the statistics after raising
the dri nk i ng age i nc 1 ude increased pub 1 i c awareness and s tri cter enforcement
of alcoholic beverage control laws. The Committee believes that a more
thorough analysis of the impact of raising the legal minimum drinking age is
in order, and recommends the following:
1.
A Special Sub-Committee should be assigned the task of further
studying the single issue of the legal drinking age. The Committee
encourages the establishment of a special legislative committee or
blue ribbon committee to investigate the data relative to the issue
and consider the ramifications of instituting such a change in
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Kansas. In its analysis, this committee would need to address the
fact that the age to buy 3.2% beer is 18 in Kansas, while the age to
purchase all other alcoholic beverages is 21.
E.
Senate Bill 699:
There are problem areas with Senate Bill 699 which the Committee reviewed but
could not resolve because they involve constitutional issues. Sp~cific types
of corrective action are suggested to "clean up" certain other parts/problems
of SB 699 on which the Committee is comfortable making comments. The
Committee has the following comments about SB 699:
1.
The prohibition of plea-bargaining should be retained as an integral
part of an effective deterrence model. Plea-bargaining for reasons
other then to avoid penalties should also be disallowed. File-
bargaining for the purposes of curtailing the prerequisites of the
DUI law is counter-productive to the deterrence needed, but it is not
feasible to prohibit all file-bargaining in order to el"iminate this
problem.
2.
Unless a Supreme Court ruling dictates otherwise, a defendent's
refusal to submit to a chemical breath test should remain admissable
as evidence.
3.
The law should provide enforcement ability in the case of persons who
are intoxicated on a drug or drugs other than alcohol.
4.
The language of the law should be revised to provide consistency in
the testing possibilities for all drugs.
5.
The inclusion of diversion as a sentencing option for initial DUI
offenses should be retained, and applied to Driving While Impaired as
well.
6.
The 1 anguage of the 1 aw shoul d be revi sed so that out of state
offenses/records can be utilized in the sentencing process.
7 .
The inherent impracticalities of indigency requirements (especially
for municipal courts) should be considered if a uniform definition of
indigency for DUI offenses is devised.
8.
The policy that the arresting officer is not required to be present
for the administrative hearing (before the Department of
Revenue-Driver's License Division) should not be changed.
Problems with the use of Community Service should be alleviated;
perhaps recent Attorney General's opinions will help.
9.
Conclusion:
The Governor's Committee on Drinking and Driving encourages the implementation
of the recommendations contained in the final report. Such action would
reduce the impact of what the Commi ttee vi ews as the greatest health and
safety problem in our state.
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REVISED OFFENDER CODE
DRIVING WHILE IMPAIRED Misdemeanor
(Greater than or equal to .05% and less than .10%)
1st Offense = Any combination of - fine ($50.00 - $200.00), Community Service, d.l. restriction/suspension, ADIS, diversion.
2nd Offense = Any combination of - fine ($50.00 - $200.00), d.l. suspension/revocation, ADIS, Treatment (No diversion)
3rd Offense = 48 hours jail, ($200.00 - $500.00) fine, automatic d.l. suspension/revocation
{Per Se Standard)
1st Offense
DRIVING UNDER THE INFLUENCE
(0.10% or greater B.A.C.)
Not less than 48 hours or more than 6 months in jailor 100 hours
of Public Service, fine of $200 to $500, restriction of driver's
license, completion of ADSAP program and treatment program
if ordered (diversion).
Not less than gO days nor more than
$1,000, treatment program completed
less than 5 days, and suspension of
(or completion of treatment).
Not less than gO days nor more than 1 yr. in jail, fine $1,000 to
$2,500, and revocation of driver's license for not less than 1 yr.
Habitual Violator = Class E Felony_Jwithin 5 years)
90 day automatic suspension consistent with
Fed. Regs.
2nd Offense
1 yr. in jail, fine $500 to
sentence reduced, but not
driver's license for 1 yr
1 year automatic suspension consistent with
Fed Regs. (without restoration).
3rd Offense =
(No changes)
\J
~
~
ro
4th Offense =
~
DRIVING WITH A B.A.C. OF 0.10% OR ABOVE
(Per Se Law)
1st Offense through 4th Offense = Same as D.U.I.
ALCOHOL RELATED OFFENSE/with property damage - (Restitution)
/with personal injury
Could be Driving While Impaired or Driving Under the Influence.
Offender could be convicted/sentenced to either misdemeanor (Class A) or felony (Class E) depending upon mitigating
circumstances (left to pro~eç_t¿1.~Y"s, judge's discretion). No Probation or Diversion.
ALCOHOL RELATED OFFENSE/with fatality(ies)
Class D Felony
No Probation/Diversion
DRIVING WHILE ON A SUSPENDED LICENSE/FOR AN ALCOHOL RELATED OFFENSE
Class B Misdemeanor
- Tmnt"\lInrlment - rt"\neietent .dth "en Rene
""...~-"-,,,-,,- -~"~,~--"-",,,,,--.,,-,,~.
(Could be used as an additional charge or an individual, separate charge, but not for use as afjJ,flJJlea-bargaining item.
This revised Offender Code does not allow for either Plea-Bargaining or Probation/Suspended Sentences (unti 1 the minimum
sentence has been satisfied), in any of the categories. It does allow for diversion in certain categories.
Chart 20A
The Kansas Governor's Committee on
Drinking and Driving
Members
Chairman:
Judge Herb Rohleder
Administrative Judge
20th Judicial District
Great Bend, Kansas
Committee Members:
Dr. Lorne A. Phillips, Commissioner
Alcohol and Drug Abuse Services
Social and Rehabilitation Services
Topeka, Kansas
Reverend Richard Taylor, President
Kansans For Life At Its Best
Topeka, Kansas
Dr. David L. Trudeau, Medical Director
St. Joseph's Medical Center
Alcoholism Treatment Unit
Wichita, Kansas
Colonel David Hornbaker, Superintendent
Kansas Highway Patrol
Topeka, Kansas
Mr. Charles Baxter, General Manager
Farm Bureau Mutual Insurance Companies
Manhattan, Kansas
Mr. Bruce Beale, Director
Douglas County Counseling and Resource Center
Kansas Community Alcohol Safety Action Project
Lawrence, Kansas
For further information, write to the Governor's Committee on Drinking and
Driving, P.O. Box 4052, Topeka, Kansas, 66604; or call the Alcohol and Drug
Abuse Services in the Kansas Department of Social and Rehabilitation Services,
(913) 296-3925.
JK:ss
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