Ace Law Letter

You can retract a breath test refusal

2012-02-10T12:09:00.000-06:00

In State v. May, the Kansas Supremes affirmed earlier holdings that found that a driver may retract a test refusal under certain circumstances. Basically, as long as allowing the driver to take the test isn't objectively overly burdensome on the testing officer, failure to allow the driver to take the test will result in suppression of any evidence connected to the refusal, including the refusal itself. This has greatest impact in the length of suspension but marginal affect on a criminal prosecution unless the driver did relatively well on physical filed sobriety tests.

Congress enters mandatory intoxilizer business.

2012-02-01T11:34:00.002-06:00

Hope for drivers denied DL hearings due to failure to remit fee on time

2012-01-27T10:13:00.000-06:00

Read this case. In summation, it states that since the statute governing municipal appeals doesn't mandate service of the city attorney within 10 days, failure to do so will not foreclose appeal. It seems to me that the exact same argument is now available for those few cases where the $50 hearing fee was not received by the KDOR within 14 days. Anyone disagree?

Supreme Court rules that GPS tracking is a search and seizure necessitating search warrant

2012-01-23T18:58:00.000-06:00

Officers may "guestimate" speed and have PC for a traffic stop

2012-01-23T16:29:00.000-06:00

According to this recent Kansas case, an officer may guess that a vehicle is speeding and need not confirm this suspicion with radar or lidar readings. Put another way, if you get stopped, a judge will probably side with the officer no matter how adamant you are that you kept the needle under the limit.

Once again, courts are giving dishonest cops a license to fix bad traffic stops.

Right-Wing Agenda: News updates 1-19-2012 2:46 p.m.

2012-01-19T14:49:00.000-06:00

Right-Wing Agenda: News updates 1-19-2012 2:46 p.m.: Supremes consider medical marijuana Law school made him attempt murder? Must be a provisional student. Immigration cases to keep an eye ...

Right-Wing Agenda: News updates 1-14-2012 2:08 p.m.

2012-01-14T14:11:00.000-06:00

Right-Wing Agenda: News updates 1-14-2012 2:08 p.m.: Matthew 6:24 (ESV) “No one can serve two masters, for either he will hate the one and love the other, or he will be devoted to the one and d...

Courts can now consider results of bogus test when detaining DUI suspects

2012-01-13T10:44:00.001-06:00

In City of Wichita v. Molitor, the court held that evidence of a DUI suspect's performance on the HGN test (pen test) is admissible to determine whether there are sufficient grounds to request a preliminary breath test. This may be significant in that no court in Kansas has found the HGN scientific enough to admit its results in trial, yet this opinion says the court, though not a jury, can used the opinion of the testing officer as relates to performance on this test as justification for a continued investigation.

This is a ridiculous opinion, though not that surprising. Previously, since no prosecutor has thus far been able to cross the T's and dot the I's needed to show even one scintilla of reliability, the only admissible aspect of the HGN was whether a driver followed instructions. Now, despite the fact that we still do not know if the test has any scientific merit whatsoever, the court may consider the officer's opinion as to whether a driver fails or passes the test.

FYI, the HGN looks for bouncing pupils at one's extreme viewing angles. Allegedly, if they bounce, there's drugs or alcohol in the blood. However, the truth is that there are just as many studies out there that reveal a similar number of people without any drugs or alcohol in their system eliciting bouncing pupils, or nystagmus. Hence, this is bad science that the court may now consider at least during the preliminary phases of the legal process.

In a word, I call this ruling crap.

Right-Wing Agenda: News updates 1-13-2012 7:45 a.m.

2012-01-13T07:47:00.000-06:00

Right-Wing Agenda: News updates 1-13-2012 7:45 a.m.: Peeing on dead Pete a war crime? Geesh. I f you don't want to talk to the police, tough. Walking away just might give them reasonable susp...

Right-Wing Agenda: News and court updates 1-10-2012 8:35 p.m.

2012-01-10T20:40:00.000-06:00

Right-Wing Agenda: News and court updates 1-10-2012 8:35 p.m.: Murder convicts overturned because the state intentionally withheld evidence on the only witness's credibility Mark Levin says Mitt doesn'...

Does the end justify the means?

2012-01-10T19:13:00.000-06:00

Here's a question that came to mind this week. A prosecutor is firmly convinced that the defendant is guilty. As long as he or she doesn't actually violate the rules of ethics, is it okay to employ sleazy tactics to hide strategy or even evidence from the defense? Same goes for the defense. If the defense attorney is "just doing his job" of zealously defending his client, is it okay to employ shady tactics to intentionally mislead the other side in its presentation of its case in chief?

Put another way, the behavior may not be per se illegal but clearly immoral, such as in intentional deception to prevent the other side from making sure the evidence is properly crossed (e.g., witness responsible for the evidence is cross-examined to point out its deficiencies). Is it more important to win than to have the other attorney say you fought a fair and clean fight? Just curious what the general consensus is.

Right-Wing Agenda: News updates 1-10-2012 7:00 a.m.

2012-01-10T07:11:00.000-06:00

Right-Wing Agenda: News updates 1-10-2012 7:00 a.m.: Didn't know high school girls had first amendment right to be slutty. Read this to see that God maybe does get behind a team. Lots of 3:16...

Right-Wing Agenda: News updates 1:00 p.m. 1-9-2012 (click on link to ...

2012-01-09T17:31:00.000-06:00

Right-Wing Agenda: News updates 1:00 p.m. 1-9-2012 (click on link to ...: No minimum number of trash pulls to establish PC for drug search Gun control kills jobs Justice Breyer calls recusal controversy non-iss...

All you get is the least of what you deserve

2012-01-06T13:00:00.001-06:00

In Mattox v. State the Kansas Supreme Court reiterated the level of professionalism clients are entitled to under Kansas and U.S. Constitutions. In summation, the lawyer's performance must not fall below the "minimum" standard, and such pitiful performance must not prejudice the defense, in order to claim ineffective assistance of counsel. It seems to me that such a standard is unjust in criminal cases when the defendants are appointed counsel. To paraphrase John Grisham, you get the best defense your money can afford to buy. Shameful.

Copyright © 2012 by Kevin Mark Smith

Drunk driving deaths soar in Kansas.

2011-12-31T11:17:00.000-06:00

Can passenger challenge PC for traffic stop?

2011-12-17T11:57:00.001-06:00

Here's an interesting case that isn't necessarily Kansas law, but likely will be soon. It's a Fourth Circuit case. The car's stop for DUI was successfully challenged, so the pat down of the passenger that revealed drugs was also challenged, even though some case law out there says the passenger lacks standing. Not anymore. Car stop illegal, passenger search illegal. Good call.

Helpful ruling on breath tests and motions in limine

2011-12-16T10:00:00.001-06:00

In State v. Smith, the court ruled that just because a breath test is not subject to suppression due to it being illegally obtained as lacking probable cause, doesn't mean it can't be suppressed in a sense if proper procedures weren't followed. This could have a profound impact on breath failure jury trials. If procedures weren't followed to the letter, a last minute motion in limine might keep it away from the jury.

Kansas finally adopts Supreme Court's expanded protections against unwarranted vehicle searches.

2011-12-02T10:05:00.006-06:00

A couple of years ago the U.S. Supreme Court drastically curtailed the ability of police to search vehicles of arrestees absent sufficient probable cause. That case, Arizona v. Gant, has resulted in a return to the constitutional protections against unreasonable searches and seizures that our Founding Fathers had in mind when drafting the Bill of Rights. In Kansas, Gant was first applied in the seminal case State v. Henning, but many prosecutors have limited its application claiming it's to be narrowly construed to searches incident to arrests and not inventory searches, and by claiming the good faith exception (the officer thought it was okay, so what's the problem?) saved many such searches.

Today prosecutors throughout Kansas aren't very happy. State v. Oram slaps down all the above arguments. Simply put, absent PC to believe a crime has been or is being committed (such as a smell of marijuana), they cannot search the vehicle of a suspect who is cuffed and secure in a patrol vehicle. No good faith or any other exception will permit inventory searches or searches incident to arrest.

Who's this guy going to sue, the squirrel?

2011-11-30T22:19:00.004-06:00

http://www.statesmanjournal.com/article/20111130/UPDATE/111129034/Man-shoots-himself-effort-dislodge-squirrel-from-his-pants

2011-11-21T21:57:00.001-06:00

Click here for interesting search and seizure case

Do NOT let police search your car without a warrant.

2011-11-18T12:34:00.001-06:00

Here's the scenario. You get pulled over on the highway while driving through a state not your own. Officer says "have a nice day" as he hands you the ticket and starts to walk to his patrol vehicle. He stops midway, turns around, and recontacts you, then asks if you have anything you shouldn't have in the car. You say no. He asks if you mind if he searches. You say okay. He does and finds some pot. You get arrested. Sounds like a lack of probable cause for the search, right? Sadly, in U.S. v. Hunter and a string of other federal and state cases, including in Kansas, it's a classic recontact, voluntary encounter followed by a consensual search. The evidence will come in and you are cooked.

Simply put, never participate in such "pretextual" voluntary encounters. Say thanks for the ticket, start your car, then leave. If the officer has PC to search, he will, or he'll detain you so he can obtain a search warrant; if not and he searches anyway, you are gold. But don't make his job easier.

Copyright © 2011 Kevin Mark Smith

Click here for Supreme Court's scathing analysis of GPS tracking devices. Big news!

2011-11-09T15:11:00.002-06:00

U.S. Supreme Court weighs in on DUI law, in a good way

2011-11-05T10:28:00.002-05:00

In Bullcoming v. New Mexico, the U.S. Supreme Court ruled that in order to use a blood test result, the testing toxicologist must be available to testify. Demand that your attorney require the State to produce the testing toxicologist in your trial and do not waive your right to confront this witness. If you can't confront, the test won't come in. Nice ruling and it's from the highest court in the land.

Wall Street thieves are to blame for the guy who breaks in your house or beats your children to death

2011-11-01T10:54:00.003-05:00

I am blessed. I never lived on the fringes of society. I've grown up with a mother and father in the same home. I had a few rebellious moments in my youth, mostly during my college years, but never anything truly dangerous or illegal. A few fraternity buddies and I pulled a couple of pranks on rival frats, but that was the extent of it. As a criminal defense attorney I see in my clients what I was spared growing up.

People who flaunt their rebellion and disobedience as a matter of course. Breaking into homes and businesses. Driving drunk not once but two, three, four, and even more times. Hitting girlfriends, wives, and children just because they got mouthy. Doing drugs ranging in strength from pot to cocaine. Why?

That's the million-dollar question. Why do such stupid, rebellious things when they will eventually catch up to you? And my experience (as well as many my clients') is that such stupid, rebellious behavior will eventually catch up to everyone.

No respect for anyone's person or property. What's ironic about that conclusion is that these very same people do many of these stupid things because they think they are not getting their due respects, especially when physical assaults (domestic and otherwise) are involved.

See Romans 13:1-5.

I'll bet when you started reading this article you thought I'd blame such rebellious behavior on the lack of an intact home life, didn't you? You may still be thinking this. But I'm not. Instead, I blame the system. Our progressive criminal justice system, "punishment fits the crime," is to blame. Maybe cutting the hand off a thief would be a good thing. I've represented many clients over the years. Most get deals for probation, even when they have a history of violent, antisocial behavior. There's no fear of punishment. Until the judge slams down his gavel denying probation, the criminal defendant is likely never contemplating life or a large portion of his life behind bars.

A pastor of mine once jokingly quipped, when talking about slogans for my firm, "I will set you free for another crime spree." It's no joke. It's likely what most criminal defendants expect from their lawyers. Freedom to commit more crimes.

What's the solution? I do not know. A belief in God and eternal consequences might make a difference, but I've heard enough jailhouse confessions to know that this isn't necessarily a solution, unless you could actually know if someone means it. I'd love to end this post with a brilliant, obvious cure for all our criminal justice system woes, but I can't. No one can. As long as we have people protesting on Wall Street blaming others for their failure to live responsible, successful lives, there will be no easy solution. As long as our solution is to take from another his hard-earned money and give it to someone else who didn't earn it, we are doomed. Stealing is stealing, even when it's politicians buying votes from the disenfranchised. I bet that hit you on the blind side.

Copyright © 2011 Kevin Mark Smith

Total waste of taxpayer money!

2011-10-25T10:59:00.001-05:00

I blogged last week about my jury trial, tempting you with my belief that the prosecutor wasn't doing the right thing in taking the case to trial. After four days, one of those days taken up with jury deliberations, my feelings are affirmed. In the end, the jury hung, as in it could not reach a verdict. I am tempted to tell you my true feelings about how the State is dealing with this case. I will not. Suffice it to say that it's the second time this case hung and proceeding with a third trial is an incredible waste of taxpayer resources. I predict it will hang again. Too bad the client will have to sit in jail another several months.

Why not do the right thing?

2011-10-18T16:04:00.001-05:00

I think there should be a prerequisite to prosecuting cases. Be a defense attorney first. Why? Simply put, throwing newly minted attorneys into the job of prosecutor spoils them and gets them into a mindset that the goal is to win, not necessarily to do the right thing. And let's face it, when it comes to criminal law, the deck is stacked against defendants, innocent or not. Jurors almost feel guilty when they cut a defendant loose, especially in close cases where the issue truly was "reasonable doubt" versus "no doubt at all."

Tomorrow I am going into battle once again. I will refrain from getting into the facts since there's an extreme chance that a juror might read this post. Suffice it to say that I will reveal when the trial is over the issue present in this case that compels me to think that the prosecutor I am going up against is one of these "win at all costs" types.

We live in America where even founding father John Adams defended redcoats suspected of shooting into a crowd of protestors, killing several. Not guilty, by the way. What about our deeply ingrained sense of right and wrong? What about viewing the government as suspect and citizens as more important than the government?

Unless prosecutors are forced to spend time on the other side of the fence, it seems to me virtually impossible to look past the desire to win as opposed to doing the right thing. I rest on one of my favorite scriptures, "The first to present his case seems right, till another comes forward and questions him." Proverbs 18:17 (NIV). I hope my jury grasps this truth. The prosecutor certainly won't.

When the battle ends, the lessons begin

2011-10-07T13:46:00.002-05:00

I was in jury trial again this week. Tough case. The client ran from the police when they tried to arrest him for a felony warrant. Allegations of profanity, spitting at the officers, resisting arrest, and a few other claims came out in trial. We took it to trial despite the problems. I was tempted to file a motion to change the facts, but that's just silly. Anyway, our main objective was to secure an acquittal for at least one of the two felony obstruct charges. The way the facts came out (one arrest followed by belligerence), it's what should have happened. Even the judge said so. No such luck. Guilty all counts. However, the judge hinted that one of the three counts would be set aside upon a defense motion since the jury verdict on the second count wasn't supported by the facts (can't obstruct service of a warrant twice when the first attempt results in a perp's arrest), so our purpose will likely be realized. One felony conviction, one acquittal, and a misdemeanor battery LEO (the spitting incident). There will also be an appeal, especially if the Motion for Not Guilty Finding Nonwithstanding the Verdict isn't granted, so we're still at it.

So what's the real lesson? Never quit. If victory comes later rather than sooner, it is still victory. It's better sooner, but it doesn't always work out that way. Also, sometimes fighting the battle is worth it even if you know in your heart that you will likely lose. When the State won't offer anything, fight. When you know the judge probably won't honor a plea deal, fight. When you won't be better off based on any calculation with a plea than if a jury finds you guilty, fight. If you do, there's a chance, small as it might be, that the jury will acquit. If you plea, no chance at all. So fight.

It hurts to lose, but it's shameful to roll over and die without a fight. At least that's my philosophy.

Better go into a plea with eyes wide open

2011-09-30T13:02:00.000-05:00

We revisit an issue I blogged about a few months ago, withdrawing a plea before sentencing. The case is State v. Brown. It involves a defendant who had second thoughts about pleading after he waived his rights but before he was sentenced. In summation of the factors a court will consider: (1) was the defendant's counsel competent; (2) was he coerced of taken advantage of; and (3) was the plea freely and voluntarily made? If a defendant can't say "no" to at least one of those, the court lacks the discretion to permit a defendant to withdraw his plea.

Here's what it comes down to in my experience: be careful when you hire an attorney in the first place. If he has trial experience and isn't afraid to get ruffed up in front of a judge or jury, he will wade carefully into plea negotiations and tell you honestly if accepting a plea offer is in your best interests. Otherwise he might just be trying to close your case quickly and cleanly without considering its impact on you. Sad to say, but this is often the case.

Things to be considered. Will the plea give you a better chance of avoiding jail or prison time? Will it reduce your time to serve? Is the sentencing judge one who honors plea agreements, generally? Do you want to avoid facing a judgmental jury at all costs? Are you innocent? Will one or more elements of the crime be a tough sell to the jury by the prosecution?

A good attorney advises based on these considerations. Is the plea deal no better than you'd get if convicted by a jury? Then what's the point? Go to trial even if the facts stink; you could get acquitted. Plea, no chance of that. If your attorney is trying to get you to plea straight up with no deal at all, there better be a good reason. Ask him about his trial experience. His answer might hold the "bad" reason.

Hire a lawyer who hates to lose but isn't afraid to fight an unwinnable battle

2011-09-21T15:18:00.004-05:00

I left the DA's office more than 10 years ago for a couple of reasons. One, I saw the same defendants time and again dealing with the same legal issues, represented by the same defense attorneys, but with different case numbers. Simply put, their attorneys almost seemed like they didn't want the clients to clean up their acts. That would mean no repeat business. Deep inside I knew there was something they weren't addressing that needed to be dealt with, the spiritual component that leads a person to live a life in a state of perpetual rebellion and selfishness. Thus, I saw an opportunity to help people in ways other attorneys weren't.

Two, except for a notable few of the dozens of defense attorneys I saw in court while in the DA's office, most weren't acting as zealous advocates for their clients. Plea first, ask questions later. Years later I learned that this quality is not unique to criminal and traffic cases. I saw the very same characteristic in domestic lawyers. I like trials. I like teeing up a case in front of a judge or jury so I can slug it out with hostile witnesses, prosecutors, and opposing counsel. Thus, I knew that once I hung my shingle and opened my practice, my desire to help combined with my willingness to fight "to the death" would be appreciated by clients and I would have plenty of clientele shortly.

All my most optimistic expectations came true.

Here's a characteristic of some attorneys that also bothers me. Some will only take cases to trial when they are almost 100% sure they will win. I don't mean that they are so good that they win all their cases. I mean that they will fire a client who won't plea guilty or no contest to a case that stinks and demand the attorney to take the case to trial. This probably bothers me more than the other things that led me to open my office. It's kind of like that character's line in the movie Stripes who told one of his fellow soldiers that if the other went into a battle that he would be behind him all the way. Sounds pretty cowardly if you ask me.

I had one of the above cases this week. Due to attorney-client privilege I will spare you the details. Suffice it to say that I didn't expect to win going in, though I did feel hopeful due to certain aspects of the case. After the first day I was a little deflated until I talked to one of the State's witnesses. She was better for our case, and after talking to her and getting her commitment to testify the next morning, I was feeling more and more optimistic that not only did we have a shot of winning, but that it was more likely than not that we would indeed win. After the second day of trial, I privately thought we had a better than 50-50 shot, although I did prepare the client for the worse-case scenario.

The jury deliberated for 2.5 hours, 2 hours longer than I expected. Guilty. For a brief moment after the verdict was read, I contemplated taking the path of those trial-free wimps I talked about above. I got over it. Good thing, too. I have a couple of court-appointed clients coming up for trial in the next two months, and their cases are not good at all (that's why I take court-appointed cases, by the way. Seems like people want your money's worth when they get "free" representation).

Here's my point. If you ever find yourself in need of a lawyer, don't hire one who will never go to battle for you. How will you know? Simple. Ask him how many jury trials he's had in the last few months. Ask how many bench trials or suppression hearings. For domestic and civil, at least demand that he's held an evidentiary hearing or two, or taken deposition testimony. Don't hire a paper pusher, or an attorney who only wants to keep the prosecutor and judges happy. That's not his job. His job is to advocate zealously for your best interests. Not his own, or anyone else's. Demand a lawyer who will fight for you.

Now please excuse me so I can dress my wounds to heal up for the next battle.

Copyright © 2011 Kevin Mark Smith

Yet one more smell that will justify a vehicle search

2011-09-17T12:59:00.004-05:00

Before Friday, the only odor in a vehicle that provided sufficient probable cause for a vehicle search absent a search warrant was marijuana. Not any more. Thanks to State v. Stevenson, Kansas has added alcohol to that list. It can now be assumed that if you are investigated for DUI that the car will be searched every time. Just terrific.

My advice to clients is to not do anything inappropriate in your vehicle. No pot. No open containers of alcohol. No nothing. Of course, if you already took my advice to read Romans 13:1-5 and have therefore decided to not do anything illegal at all, this new advice is moot.

Just because the supplier caused the damages doesn't mean the contractor who ordered the supplies won't have to pay to repair them

2011-09-10T10:23:00.004-05:00

I had a recent disaster hit me. We contracted with a roofing company to replace a roof on a rental property. It is an old building, but the contractor knew this and prepared a bid based on its inspection. The contract signed, the roofing company ordered the shingles which were promptly delivered. Within a couple of hours after delivery, the roof collapsed (the shingles were placed on top of the roof).

For a very personal account of my experience, read this.

I have no doubt that the damages will be paid. Due to the dragging of feet, I did have to turn in a claim to my insurance company. Part of the dragging of feet was the contractor claiming it wasn't its fault. The supplier did it. However, as a lawyer I beg to differ. In Kansas, a contractor is held vicareously liable for the negligent acts of its subcontractors. Some cases indicate that the damages and harm must be foreseeable, and that the acts of the subcontractor can't be criminal in nature, but neither of these apply here.

In the words of the supplier's foreman, "This doesn't happen very often." Huh? Sounds foreseeable to me.

As your potential attorney I would offer you these words of advice. Don't believe that the guy who contracted with you to fix the initial small problem is your friend. One good act worth a few thousand dollars does not make up for damages equating to tens of thousands in damages. I say this from my own experience. As the very nervous foreman takes steps to help mitigate the damages (like mine is doing now), keep in the back of your mind the thought that this man's company is on the hook for the damages caused to your property. Get along. Be nice. But be prepared to hold him accountable when the time comes for checks to be written to pay for repairs.

Right-Wing Agenda: Top ten reasons a collapsing roof is actually a go...

2011-09-09T10:49:00.000-05:00

Right-Wing Agenda: Top ten reasons a collapsing roof is actually a go...: I received word yesterday afternoon that I may be on the hook for the depreciated value and the deductible of the roof repairs on the apartm...

Right-Wing Agenda: The roof collapsed...and they were happy and did d...

2011-09-08T07:24:00.000-05:00

Right-Wing Agenda: The roof collapsed...and they were happy and did d...: The call came just after 3:00 p.m. "You need to get down here," the tenant said. "Something's not right." "What do you mean?" I asked as f...

Right-Wing Agenda: Why do we waste so much time?

2011-08-30T10:31:00.000-05:00

Right-Wing Agenda: Why do we waste so much time?: Our church had a guest speaker a few weeks ago who preached on the one great equalizer of all men, time. We all have the same number of minu...

Don't assume you're guilty just because you hit somebody

2011-08-20T10:20:00.009-05:00

In Kansas and most other states, you have the right to use reasonable force to defend yourself. This right often gets disregarded when one gets charged with domestic violence. State v. Brown reiterates this absolute right in Kansas DV cases. Indeed, while a few states only have a common law right (case holdings say it exists but not statutes), it is engrained and codified in Kansas statutory law. See K.S.A. 21-3211.

Don't overreact to this posting. If your honey punches you in the face, you can't grab your gun and shoot him in the forehead. Only reasonable force is permissible. Kick him in the nether region instead.

By the way, you can also use reasonable force to defend your property or dwelling, and for use of force to defend persons (yourself and others) or property, there's no duty to retreat. However, you will lose both defenses if you started the altercation in the first place. See K.S.A. 21-3214. Hence, you can't pick a fight and then bludgeon someone over the head with a two-by-four when you realize that the dude you picked a fight with is about to kick your scrawny butt. In such a case, you will likely still have to face battery charges absent the defense even if your would-be victim puts you in the hospital defending himself from you, unless, of course, he is charged with battery, too, and the judge finds that the force he used against you was excessive and thus unreasonable, but I digress.

Copyright © 2011 Kevin Mark Smith

You cannot appeal a guilty plea...or can you?

2011-08-12T10:11:00.002-05:00

Be careful when you plea guilty or no contest to a criminal charge. When you do, you will have to waive your right to appeal the conviction, as long as your sentence is legal. If your sentence is illegal (more time than provided for in statute and sentencing guidelines), you can appeal. However, if you feel like you weren't represented effectively and file a motion to withdraw the plea, according to State v. Hall, and the judge overrules your motion, you can appeal.

There's another lesson here. Hire an attorney who knows the law. Also, if you're sold down the river, so to speak, hire another attorney as soon as possible after you plea and are subsequently sentenced (or, better still, hire one after the plea and before the sentencing since all you need show is "good cause" and not "manifest injustice." See State v. Denmark-Wagner, also released today).

Fill out this form if you want to turn your DUI suspension into an interlock-authorized DL

2011-08-09T09:50:00.000-05:00

Sometimes, judges issue rulings that boggle the mind

2011-08-05T11:30:00.000-05:00

Normally I am quite supportive of rulings that favor drivers over the Kansas Department of Revenue because, to put it bluntly, the KDOR is so anti-citizen when it comes to first-time DUI cases that justice is not even remotely considered. Some kid who blows right at the legal limit who was clearly not impaired getting his license suspended for a year seems a bit harsh to me, but the KDOR doesn't give a darn about ruining this kid's life. However, sometimes it's apparent that judges, men and women who are expected to enforce law and not make it, are on the other end of the spectrum, and this scares the bejesus out of me. Case in point, Allen v. Kansas Dept. of Rev., No. 102,134 (Kan. Ct. App. August 5, 2011).

Here are the facts. The officer witnessed several traffic infractions so had probable cause to stop the driver. He smelled alcohol on the driver's breath, had an admission of "6 beers," had failing scores on all fields tests, and a failing result on the preliminary breath test. The district court judge ruled that the statute giving the officer authority to give a PBT test was unconstitutional, then held that but for the PBT test result the officer lacked PC to arrest and continue the DUI investigation. Both of the rulings fly in the face of Kansas Supreme Court precedence and, to put it bluntly, make no sense whatsoever.

There is only one possible outcome of the ruling in Allen. The petitioner will pay his attorney a few thousand dollars more to file a petition for review with the Supremes, and the Supremes will not grant the petition. Maybe I'm an anomaly, but I wouldn't even take on a case that is clearly frivolous. I have rarely accepted such cases with the clear understanding that the client needed more time before being suspended, but the lawyer involved in Allen has a reputation of tilting at windmills. He takes frivolous cases on appeal all the time, thereby wasting his and his clients time and resources.

Be careful when hiring an attorney, especially when the case is billable by the hour. Such attorneys have an incentive to churn the case to maximize their fee regardless of chance of your victory.

Right-Wing Agenda: Federalist No. 2. It's amazing how easy it is to a...

2011-07-19T16:23:00.000-05:00

Right-Wing Agenda: Federalist No. 2. It's amazing how easy it is to a...: "Federalist № 2 Concerning Dangers from Foreign Force and Influence To the People of the State of New York: When the people of America r..."

The Kansas legislature couldn't leave well enough alone. Click here for new codification for the criminal code.

2011-07-19T16:20:00.000-05:00

Right-Wing Agenda: The Federalist Papers were wrong! Federalist No. 1...

2011-07-14T12:31:00.000-05:00

Right-Wing Agenda: The Federalist Papers were wrong! Federalist No. 1...: "Over the next several weeks I will be posting one Federalist Paper at a time, along with my spin on what's actually happened with the passag..."

Caylee's Law is a good thing, isn't it? Maybe that's just the dad in me, not the criminal defense attorney talking.

2011-07-08T09:22:00.001-05:00

First, let me say that the outcome of the Casey Anthony trial, not guilty of the most heinous crimes, was shocking to me. However, shocking doesn't necessarily mean it was the wrong verdict. In America the State must prove every element of every offense charged beyond a reasonable doubt. Clearly, there were many holes in the State's case, namely, the body of that poor child was so decomposed that no one could say with certainty how she died. Lots of theories were floated during the trial, but beyond a reasonable doubt? Not even close.

That being said, my fellow defense attorneys in Kansas are up in arms about the Florida legislature's possible reaction to the verdict. If you'll recall, Casey didn't even report her little girl missing for more than 30 days, and then it was the concerned grandmother who made the report. In reaction, Florida may pass Caylee's Law, which will make it a felony to not report one's child missing in a timely manner. Had this been in place prior to the trial, Casey might have had at least one felony conviction to go along with her four misdemeanors. How is that an overreaction?

It appears to me that some defense attorneys are simply unsatisfied unless their somewhat guilty clients fail to get off without any personal price paid whatsoever. And please spare me the argument that Casey Anthony serving out her 4 year sentence for measly misdemeanors is justice served. We won't know that for certain until this woman has another kid and proves the jurors right or wrong. Let's pray another dead child isn't the result.

Click here for article on new Kansas DUI laws

2011-07-01T09:47:00.000-05:00

Right-Wing Agenda: If you walk a mile in another man’s shoes, you mig...

2011-07-01T07:53:00.000-05:00

Right-Wing Agenda: If you walk a mile in another man’s shoes, you mig...: "“What do you do for a living?” my new acquaintance asks. My palms get sweaty. My eyes dart away from his face and down to the table that lie..."

Right-Wing Agenda: My immigrant friend from the UK has changed his mi...

2011-06-27T13:02:00.000-05:00

Right-Wing Agenda: My immigrant friend from the UK has changed his mi...: "Our government is out of control. It is micromanaging our lives and forcing hardworking small business owners out of business. Here's an exa..."

Right-Wing Agenda: How can we "the people" be expected to obey the la...

2011-06-17T12:34:00.000-05:00

Right-Wing Agenda: How can we "the people" be expected to obey the la...: "Driving to court this morning I saw something that made me very angry. A Sheriff's Dept. detention deputy was flying down Kellogg weaving in..."

The Blakely Rule or "A very bad way to become infamous"

2011-06-08T14:31:00.001-05:00

“ Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment.” Romans 13:1-2 (ESV).

One common characteristic of criminal defendants is a seeming inability to submit to authority. As Romans 13:2 tells us, failure to submit to such authority will result in judgment. No one knows this better than Jane Doe (name changed to protect the not-so-innocent), who was the inspiration for The Blakely Rule (name also changed to avoid embarrassment of the deputy) in the Sedgwick County Sheriff's Department.

Late one Friday night Jane and her friends were cruising the streets of Wichita, Kansas. Deputy Blakely received a 9-1-1 dispatch report of an erratic driver and sped to the general location of the report. Sure enough, he spotted the suspect vehicle crossing the centerline a couple of times so got behind it and activated his emergency lights. It didn't pull over, yet also didn't speed away. In fact, it was traveling a good ten miles under the posted speed limit. It then pulled into a trailer park, still not pulling over. Deputy Blakely accentuated his lights with siren bursts a few times, but only after the vehicle's driver, Jane, made it to her driveway did she stop her car.

The car never sped. Indeed, after entering the park, its speed dropped to under ten miles per hour. Despite this, Blakely jumped out of the car, drew his firearm, then yelled at Jane through her opened window, demanding she unlock her door and put her hands where he could see them. She didn’t comply immediately. By this point Blakely noticed four very large black men in the vehicle and grew nervous at Jane’s failure to respond, so used the hand not holding his sidearm to unlock the door himself. Jane was still slow to respond. Blakely now had a backup officer standing to his right. With the other officer close by with his sidearm also drawn, Blakely tired of Jane’s failure to comply with his directives so holstered his sidearm, ripped open the door and grabbed the only loose appendage he could, the top of Jane’s hair.

Suddenly and without warning, Blakely let out a gasp as the top of Jane's hairdo pulled out, his body contorting like he'd just seen a ghost or dead body as it did. It looked like a large tarantula. He threw it to his right like a hot potato, which happened to be where his backup officer was standing, which resulted in that officer also gasping, hopping out of the way, and mimicking Blakely’s body movements as he did. Moments later Jane was in custody and her passengers secured, and the hair weave locked away so it could do no more harm.

Jane learned the lesson of not submitting to authority. Her bald spot was exposed for all the world to see. And for the rest of time Sedgwick County Sheriff’s Department trainees will be indoctrinated with The Blakely Rule: Never stand to the right of Deputy Blakely lest you be assaulted with a suspect's hair weave.

This video shows the kind of crap cops deal with. Warning! Bad language.

File a motion to modify child support today, it will be adjusted by the first of next month, appeals court holds

2011-05-27T12:57:00.000-05:00

In re Jones takes a little bit of the sting out of the lengthy process of adjusting child support. Simply put, if you file now, it will be retroactive to next month even if it takes a couple to get a ruling from the court.

More changes to DUI laws than expected

2011-05-17T20:36:00.000-05:00

I will provide a more thorough analysis in a future post, but in addition to previous versions' provisions for suspension changes, namely, restrictions with interlocks after 45 days for all 1-year suspensions, and all refusals knocked down to one year followed by lengthy interlock periods, felony charging only goes back 10 years. Hence, if a DUI is a third or more but the convictions making it so are more than 10 years past, it is a class A misdemeanor with felony penalties.

Click here for the final conference report. Bear in mind that the Governor must approve.

Setting up a business is more complicated than it looks

2011-05-14T13:01:00.000-05:00

You can't just walk out of the door one day and start running a business, that is if you want to avoid City, State and Federal government officials from breathing down your neck at best, and shutting down your business at worst. There are miriad issues that you must consider before starting a business, and the best way to get off on the right foot is to consult an attorney.

First, what business entity should you adopt? Do not make it a sole proprietorship or simple partnership. For these forms, if you go belly up or get sued for damages, you and your family will risk your home, personable savings, and whatever else you might have, even if you're bonded or have insurance. LLCs are generally the best and simplest form for the small business owner. They can be treated as a simple partnership for taxation purposes (no double taxation) and protect your personal assets from seizure. However, if one or more of the shareholders/partners intends to draw a salary, you can't use an LLC. Also, if you add a member later on you have to jump through lots of hoops, including changing your tax ID number, for the IRS. For these potential contingencies, a Chapter S Corporation is better. Form a corporation, then elect the Chapter S designation upon filing for a tax ID number. Your attorney can set up the entity and give you direction on electing the form for taxation purposes and otherwise.

Second, do you need to get a sales license in your city for your particular business operation? If you sell anything or provide services that are not "professional," the answer is likely "yes."

Third, if you have employees, make sure you don't treat them improperly for taxation purposes. Some think they can just call someone a subcontractor and not have to withhold taxes. This is usually dead wrong and will result in the employer getting whacked with a huge penalty along with withholding. For example, if the person works for you exclusively, he's probably an employee. If he is at your beck and call with very little discretion on how to do the job, he's an employee. There's also minimum wage and other wage regulations that likely apply, including overtime limits. Make sure you know what is required before hiring even a single employee.

Forth, make sure you comply with OSHA and other workplace safety laws. They are so numerous that the scope of this article is simple too tiny to cover all of them.

Finally, get a good accountant. I've personally used an accountant for my quarterly and annual filings since I first opened the law office almost 10 years ago. He has kept me out of trouble from the start and I've never had problems with the IRS. It's the one "problem" you do not want to incur.

If you are a business owner and want to make sure you are complying with the essential principles, regulations and laws enunciated above, or if you are thinking about opening a business, please call our office. We will be happy to put you on the right track to realizing your dreams.

Mugshot of the week

2011-05-10T12:40:00.001-05:00

This woman was having a bad day. She was booked for felony DUI and is currently on Sedgwick County's most wanted list.

Looks like the DUI suspension revisions will make it to law

2011-05-10T12:16:00.002-05:00

Good news and bad news on the DUI law front. Good news is that we will see a roll back in flat-out suspensions for DUIs, converting much of the time to mandatory interlocks with restrictions. Both houses of the state legislature approved the joint committee bill and have submitted it to Governor Brownback for approval. This will result in families of drunk drivers not being punished since the bread winner may be able to keep his license and job, as well as you and I not sharing the road with suspended, uninsurable drivers. Bad news is that first-time offenders will also be required to install interlocks in their cars.

One other positive aspect of the changes is that they are retroactive. If someone suspended under prior law wants to take advantage of the interlock with restrictions provision, he has to pay a fee. Specifics of the changes are spelled out in a previous post on this blog.

DUI-related DL suspensions may get less harsh (and more reasonable)

2011-05-05T10:22:00.000-05:00

First, a qualifier. We may see a change in Kansas DUI suspension laws on July 1, 2011. Our lawmakers are squabbling over money issues right now so this could impact whether the proposals I am about to share hit the statute books. The bill is labelled SB6, so you can track it if you wish on the Kansas legislature's web site.

All 1-year suspensions can be turned onto 45-day suspensions if the driver applies for an interlock/restricted license. This will potentially impact 1st time over .15 BAC drivers, as well as all 2nd and 3rd breath/blood failure drivers.

2nd, 3rd, 4th, and 5th lifetime refusal suspensions will morph into 1-year suspensions followed by 2, 3, 10, and lifetime interlock/restricted DLs.

In summation, it's really tough to make it in this world without driving vehicles. Moreover, suspended drivers will drive anyway, but will do so without insurance. These changes will make it possible for people to get DLs and make them insurable. Families of drunk drivers won't be forced to suffer due to the drunk relative's stupidity. People involved in accidents with former drunk drivers will be able to get their damages paid for. Everyone wins.

Also, drunks won't be able to drive unless they are alcohol free.

Mandatory registration doesn't necessarily apply to juvenile adjudications

2011-04-29T10:09:00.000-05:00

The Supreme Court of Kansas just released a potentially important opinion. In State v. Fredrick, the court held that for purposes of mandatory offender registration, Convictions are not the same as "juvenile adjudications." Potentially, this could result in so-called Romeo & Juliet convictions (e.g., 17 year old boy caught making out with 15 year old girlfriend) not requiring sex offender registration for ten years, a pretty harsh outcome for a boy's future, if you ask me.

This will also apply to violent offenses, such as agg. assaults or batteries.

Funny stupid criminal video

2011-04-19T10:39:00.000-05:00

A few thoughts on living the responsible life

2011-04-16T10:26:00.001-05:00

Each time I appear in a traffic, domestic, or criminal court, I find myself coming to the same conclusion, not necessarily as it relates to the client(s) I am representing on that particular occasion, but certainly as it pertains to the general makeup of the docket. It is this: there is little if any difference in the people who are facing legal problems from one courthouse to the next. Different city, different courthouse, but, in general, the same people.

Here they are. In general they are living on the fringes of society, from one paycheck to the next, barely getting by financially. It is very clear that their parents never pounded into their skulls the importance of taking care of their business responsibly. One might say this is because of the former, the financial struggles they face. I disagree. Why? It's something a judge or two has said to me on occasion. Let's say they are facing a driving without insurance ticket. More likely, they are facing a second, third or forth such violation, along with driving while suspended. No big deal, you might say? Guess what? That's the attitude that got them into this mess in the first place. "It's just traffic. What's the big deal?"

Would you call 12 months in the county jail a big deal? That's what a second or more such violation carries with it.

Back to the point. If you hire an attorney for one of these traffic misdemeanors, you will spend at least $500.00, and probably more if you hire an attorney who will actually work your case. The back room statement from the judges? "He came up with the cash to pay your fee, so why didn't he send that money to the insurance company and stay out of my court in the first place?"

Therein lies the problem. The commonality to all these courtrooms and all these defendants is that they are, in general, rebellious types. They think the laws are stupid and don't care to follow them. Sure, there is a small number of people who truly do have problems getting by and are choosing between putting food on the table or paying their insurance or for that traffic ticket that has them suspended, but this number is small. Indeed, I can't recall the last time I saw a skinny, bone-thin, starving person facing such charges. Most are the exact opposite, as in living on fast food, smoking, and in general not hesitating to waste money that would be better spent getting their financial houses in order than killing their bodies with unhealthy diets, tobacco, and likely illegal drugs (lots of pot smokers in this group, by the way).

Staying out of the legal system takes a little vigilance. Get up early in the mornings and go to work. Make sure your car has a valid tag. Make sure your insurance is paid up. Make sure you don't run up credit (better still, don't take out any credit). Pay your bills on time. Be a good steward of your things, including the apartment you rent from someone else. Be clean and neat in your daily habits. Don't have sex outside of marriage. Don't have babies unless you're married to the other person helping you procreate the little one. Teach your children to live a similarly responsible life.

Put another way, stop living for the moment. Think about the repercussions of living a stupid life. Think about the costs tomorrow will bring with it and not just the good feelings you get today. Do all these things and you might just have to deal with a regular speeding ticket every so often (like me!) and not the kind of legal quagmires that will just pile more dirt on top of your life.

Here's my objective. Help my clients get their lives straightened out so that one day I will only have to help them with fun things, like wills, adoptions, setting up businesses, and other things that give us lawyers a really good name. You know, helping responsible clients and not just the irresponsible ones.

This disciplinary opinion seems harsh

2011-04-15T10:59:00.001-05:00

Click here to review a Kansas disciplinary opinion that was just released today. I would add that the allegations were from almost two years ago. While no one can condone what happened during that very difficult time in the lawyer's life, it seems to me that the lack of subsequent issues might indicate that the sanction imposed is a bit harsh. Then again, unless you've been victimized by bad lawyering and had your case killed by such behavior, it's hard to blame the panel for the outcome.

I know the attorney in question. He's a good man who was facing some very difficult issues in his life. Why not let the professional liability insurance carrier pay the damages and put the lawyer on probation? Happens all the time in cases involving much more egregious violations.

If you're too stubborn to hire a lawyer to make your will, at least make sure the one you make yourself includes the basics

2011-03-30T18:11:00.002-05:00

Jack called his attorney just three hours before he and his wife were scheduled to fly overseas for a long-overdue second honeymoon. He said he wanted to make sure their powers-of-attorney were sufficient to give his parents, who would be taking care of the kids while they were away, what they needed should the kids get hurt. Then he dropped the bomb, “We don't need to worry about wills. We did one of those handwritten ones that appoints mom and dad guardian and puts all our assets in a trust for them, just in case the plane crashes.”

The attorney had handled other legal matters for them and the subject of wills had never come up before, so the next thing he said came as a shock. “Not good in Kansas (or lots of other states). You die and it will be a free-for-all with your parents and in-laws over who takes the kids and where the money and property goes.”

“A good man leaves an inheritance to his children's children.” Proverbs 13:22a (ESV)

Of all the things a family with children or substantial assets needs, it's a will. A legally-enforceable will binds the judge's hands and forces him to honor your wishes. Knowing that many people are gun-shy about end-of-life decisions (and with the caveat that I am not your attorney and the information that follows doesn't create an attorney-client relationship), what follows are the things you can do to throw together a will that will protect your kids, spouse and loved ones in the event that you leave this earth for a better place and leave loved ones behind before you can afford to hire an attorney to do it properly.

Step one is the information gathering phase. You must gather all important documents that identify your assets. Bank statements, mortgage payment documents, tax assessor documents are among the most important since they clearly identify where your most valuable assets are located, and will give you some idea of their value. Leave nothing out, and don't forget your IRA, 401k and other retirement accounts since many of these often constitute the bulk of a family's assets. Additionally, make sure you include all your other titled assets, such as vehicles. Secondary to these are personal property items that have sentimental or intrinsic value such are gun collections, gold bullion, or family heirlooms that children, parents and other family members might value too.

Step two is creating an outline of the legally-necessary sections a valid will must include (expanding the outline by clearly specifying what your wishes are under each section will come later, and this can be supplemented after you visit your local law library--or do some research on the internet). At a minimum, these should include:

a. An introductory section identifying you as the Testator, the person making the will, and stating that this is your “last will and testament which supersedes any and all other wills and testaments previously made by Testator,” or something to that effect. This should also include other identifying information making it crystal clear who you are, such as your social security number in the form of xxx-xx-1234 (only list the last four digits), as well as date of birth in similar form, xx-xx-1968.

b. A section identifying the Executor, the person who will file all paperwork with the court and distribute your assets to loved ones. This should be a person you trust. If some of your devisees are conspiracy types or don't get along, it's not a bad idea to have co-executors with only one being a family member. Include at least one backup. You should specify that the Executor will serve without bond. Requiring a bond will cost the estate money. If you choose someone you trust it's unnecessary anyway.

c. If you have children, include primary custodial guardians with at least two backups. Think about whom you know who would be a good role model and love your children as you do. Don't forget to get their approval. A named guardian doesn't have to agree just because the will identifies him as the guardian. If a married couple is named, consider what you would want if one of the couple dies or divorces the other. Would this change your mind about the remaining person serving as guardian? If so, make it clear that the co-guardians are to serve as a team, and once the team breaks up the next guardian/co-guardian steps up to the plate.

d. Include a section that authorizes the Executor to pay expenses first, including funeral expenses, then distribute assets based on percentages as stated below.

e. If you are married, it's a good idea for you and your wife to do your wills at the same time, and make them reciprocal, which means they are reverse mirrors of each other. She dies, he gets it all; he dies, she gets it all. This excludes specific devises (see next section).

f. If you want certain people to get specific assets, include a section that names these things specifically. For big-ticket, titled items like houses, this is a good idea. For other more floating assets and personal property items, you can include a provision that incorporates an attached list of items. Make sure you name the list, sign the list, and have a notary public witness your signature on the list, and also make sure the updated list is filed away with the original copy of the will, wherever that may be.

g. Most people who die include a provision for general devises, which takes whatever is left (usually the bulk of the estate) and assigns percentages to individuals. Be careful here. You can specify that if the person dies his share is split equally by the remaining devisees. You can also specify that if a person dies, his or her interest is split by his children (this is common for children of the Testator whereby their inheritance is split by their children instead of being given to the siblings of the child who passed away). There are legal terms for both, but it's best to keep it simple if you are drafting your own will.

h. If minor children inherit, you will need to include a section designating a trustee for the children's assets, someone you trust will manage the assets according to the children's best interests. For your own children, this is usually the guardian/co-guardian, but it doesn't have to be.

i. Choice of law. Make sure you specify which state will control the legal provisions' application. Clearly, this needs to be your state of residency, but can be complicated if you are a snow bird who resides in Florida half the year and your will doesn't specify your home state as the state whose law controls the will's application.

j. The witness/attestation section is the most critical one since a failure to do this properly will result in a will being thrown out and the judge utilizing intestate succession to distribute assets (this means your children, siblings, parents, etc. are totally dependent on what state statutes say about who gets how much), and make his own decision as to who takes care of your children. In states that honor holographic wills (not very many, and certainly not Kansas) all you need to do is handwrite all the above and sign it at the end. In most others (including Kansas) you need only have two witnesses who see you sign it but only if the witnesses are alive and available to testify when you die. To be self-proving, i.e, no need to produce your witnesses when you die, a notary must witness the signatures, and notarize the will stating same, as long as the proper language is included. For example, in Kansas the following must be attached to the will:

State of ______________

County of __________ ss.

Before me, the undersigned authority, on this day personally appeared __________, __________, and __________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of such persons being by me first duly sworn, such __________, testator, declared to me and to the witnesses in my presence that such instrument is the testator's last will and testament, and that the testator had willingly made and executed it as the testator's free and voluntary act and deed for the purposes therein expressed. Such witnesses, each on the witness' oath stated to me, in the presence and hearing of the testator, that the testator had declared to them that such instrument is the testator's last will and testament, and that the testator executed same as such and wanted each witness to sign it as a witness. Upon their oaths each witness stated further that they did sign the will as witnesses in the presence of each other and in the presence of the testator and at the testator's request, and that the testator at that time possessed the rights of majority, was of sound mind and under no restraint.

______________(testator)

______________(Witness) ______________(Witness)

Subscribed, acknowledged and sworn to before me by __________, testator, and __________ and __________, witnesses, this _____ day of __________, A.D. __________.

(seal)

(Signed) ______________

______________________________ (Official capacity of officer)

Now that you've drafted and signed your will, what’s next? A will that cannot be found cannot be enforced. Ideally, your will should drafted by an attorney. When this is done, he or she will retain a copy for your file. Even when this is done, you should give a copy of the fully-witnessed and enforceable will to the named executor, put a copy in a safe place in your home, and preserve the original in your safe deposit box at the bank (if you don't have one of these already, get one, and use it for your real estate deeds and other items you cannot replace if your home is destroyed). Also, don't forget the updated list of specific personal property devises. The signed original of this list needs to be in the same place and even the same envelope as the original will. If something happens to you, your children or relatives will be able to track down your will without any problems.

One big caveat. Some people change their wills as often as they trade in their vehicles, only with a will the change is usually precipitated by a verbal fight with family or friends. Don't do this. This will cause animosity with those left behind as they discover that you favored one child over another. If your “Last Will and Testament” breaks up the family upon your death, the true legacy will have nothing at all to do with money or wealth, rather, it will be as patriarch or matriarch of an embittered, sad and mad family.

“Fathers, do not provoke your children, lest they become discouraged.” Colossians 3:21

Making a will is one of the most important things you will ever do in your life. To a great extent, it will play a part in determining your legacy, spiritually and otherwise. Since probate laws are constantly changing in all states, it is probably not a good idea to make your own will. It's better than nothing, but professional and thorough legal advice from an attorney who keeps up-to-date on the law is your best choice.

Jack and Diane left their house in a rush. If anything could have gone wrong, it did. They lost the plane tickets and scrambled to find them in the nick of time. Jack's parents were late to the house so they almost weren't able to leave at all. And the Taxi arrived at the house almost too late to get them to the airport on time. But they just managed to make it to the gate just in time without a second to spare, and were now seated. They breathed a sigh of relief. The second honeymoon was a go. Nonetheless, all Jack could think of were the last words of his attorney. Neither he nor Diane had a valid will. If the plane crashed, who would raise the kids? He didn't tell Diane what the attorney had said, or about his concern. At least one of them deserved to enjoy her vacation.

Cops off duty are private citizens

2011-03-27T12:29:00.000-05:00

See State v. Hamman, 273 Kan. 89 (2002). "A law enforcement officer who makes a warrantless arrest outside the territorial limits of the officer's jurisdiction must be treated as a private person." Syl. Para. 1. "A private person may make an arrest when any crime, OTHER THAN A TRAFFIC INFRACTION or a cigarette or tobacco infraction, has been or is being commited by the arrested person in the view of the person making the arrest." Syl. Para. 2. See also KSA 22-2403(b).

Do you know your rights (as an employer or employee) as they pertain to disabilities in the workplace?

2011-03-08T22:47:00.001-06:00

Neither employers nor employees fully understand the concept of a qualified disability in a workplace environment. Under the Americans with Disabilities Act, a person with a "qualified" disability cannot be fired. Employers who hear this truth wince. Employees who may have a disability point their finger and say "see, I told you so." However, both miss the most important part of the term.

Qualified

It takes more to be protected under the act that just being disabled. One must have a "qualified" disability, and that's not as simple as it sounds.

Here's a disability. I am nearly blind. To be qualified, the major life function that is impaired, sight, must first not be essential to performance of the job. Let's say the job is traffic cop. Clearly, sight is important. But wait, there's more. While sight is important, the rest of the inquiry is whether the disability is correctable. Glasses correct my blindness to 20-20. Hence, if the employer fires me from my traffic cop job because of my sight, it will be liable under the act.

You get the idea. Just because someone has a disability doesn't mean he can sue if he is denied employment or fired from the job. If that disability makes it impossible to perform an essential element of the job, with or without correction, it's not qualified. A professional football player with only one leg comes to mind.

There's another factor that might also play a part in the decision to hire or fire a newly disabled person, and whether such a decision will result in a courtroom victory if the employer is sued. Is the business large enough that accommodations can be made, such as putting a former outside salesperson behind a desk, or is it so small that such an accommodation would be overly burdensome on the employer and other employees? You get the idea.

Ultimately, each case is different. It depends on the job, the nature of the disability, whether correction of the disability will render it irrelevant, and the size and nature of the business. If you, either as the employer or employee, face an employment situation where a disability is an issue, talk to a lawyer before making any rash decisions. It's also not a bad idea to have an attorney review your hiring and firing policies. A good and legal employment handbook is a good idea as well since it forces supervisors to be aware of company policies as they pertain to the ADA and other fair labor laws.

Follow up on non-justice-minded prosecutors...

2011-03-03T17:55:00.020-06:00

A few posts ago, I vented on how some prosecutors are so bent on getting convictions that they sometimes do the wrong thing by prosecuting people who follow up bad choices (and totally harmless ones) with wise ones (or at least make choices that don't endanger others). See Where have all the justice-minded prosecutors gone? February 10, 2011. In particular, when a drunk steps out of a bar and decides to sleep it off in the parking lot with the car running on a frigid winter night, the right thing to do is not try to get the man convicted for DUI. As additional facts, this particular client was asleep a good five hours after he snuggled up in the comfy, cozy, heated car.

The city judge convicted the client so we appealed to Sedgwick County District Court. Week before last I received the decision on the suppression motion filed and argued a few weeks before. To make a long story short, the judge agreed that my client did nothing illegal when he started the car to keep himself warm. In particular, the judge ruled that such an action does not show that the defendant "drove" or "attempted to drive" the car out of the lined parking space directly in front of the bar he walked out of.

Common sense, right?

To be clear, I do not fault for a second the judge in the municipal court or even the prosecutors directly involved in prosecuting the case. Rather, it's the top city prosecutor who wields the heavy hand over her prosecutors by not letting them do the right thing by dismissing such cases before defendants have to pay attorneys to get them out of trouble. Here's a question I would let prosecutors under my supervision ask: Does justice demand that this person have his criminal record permanently tarnished by a conviction? In the case at bar, is it just to convict someone for "sleeping it off" in a car that was not moved for more than 5 hours? No on both counts.

Common sense, right?

As far as the city judge is concerned, the case law is a bit murky (though applying common sense, in my view, clears up the fog quite nicely). Once the case was before him he had a duty to wield the sword of justice as he read the cases to require (see Romans 13:1-7). He interpreted a case that says "no movement is required" to show "attempt to drive" as meaning there is no need to show clear intent on the part of the person in the car to "attempt to drive." In this case, a running engine and a comment "I was just trying to get home" offsets a car sitting still from the point the driver arrived at the bar the previous evening until 5 hours after the bar closed.

If you were on a jury, would you view such facts as proving the sleeping drunk "attempted to drive"? Think about it.

It's the prosecutor who has the duty and obligation to only bring cases to the bar that require prosecution, or to dismiss them if an overzealous police officer issued the citation. Indeed, the decision issued by the District Court judge was voluminous and went far more in depth into the legal issues involved than I or opposing counsel did in our briefs. I even feel a little bit guilty for not briefing the arguments as thoroughly when I first made my arguments before the municipal court. (I intend to plagiarize much of the brief for future motions!) The District Judge's opinion was a well-reasoned, common-sense ruling that will not likely be overturned on appeal, that is if the city appeals the decision.

To paraphrase a slightly humorous quote from the decision, "attempt to drive requires proof that a defendant actually attempted to drive."

If this ruling is appealed, expect another response from me, and perhaps even an article to the Wichita Eagle.

Turn your old NES into a breath alcohol tester? Someone has too much time on his hands. Click here to see for yourself.

2011-03-01T15:08:00.002-06:00

If Charlie Sheen thinks using drugs doesn't negatively affect the average Joe, consider these before and after pics

2011-02-26T11:23:00.002-06:00

Click here for the hard reality of Drug use.

I have to pay taxes on what? Are you kidding me?

2011-02-19T16:13:00.001-06:00

Here's the scenario. You get into a car accident and get injured in the process, incurring thousands of dollars in medical bills, not to mention weeks of lost wages. Your savvy lawyer manages to get the other side to settle for a cool $100k. He takes his 40%, and you still pocket $60k. Then the big shocker comes. You take your receipts and other tax documents to your accountant to file your taxes and get the shock of your life (especially shocking since you spent the settlement on a new boat and truck). Not only do you have to pay taxes on the $60k you deposited in your bank account, but also on the lawyer's cut. At a 25% marginal rate, that means you pay an extra $10k in taxes to Uncle Sam.

The above is something every lawyer must tell his client. If he doesn't, the potential client should go somewhere else.

Turnabout's fair play. Yesterday the Kansas Court of Appeals upheld the District Court's holding that a hospital could go after the lawyer who represented the plaintiff for reimbursement of its medical treatment fees. See Via Christi Medical Center v. Reed, et al., No. 101,690 (February 18, 2011). It's typical for a hospital to sue the patient once it gets wind that a settlement or judgment is reached. Especially when the injured party is indigent and would otherwise qualify for debt forgiveness under a treatment center's benevolence policy. They will forgive the debt contingent on some sort of payout by the respondent's insurance company. Once it sniffs money, it's no holds barred.

For the otherwise pennyless victim, this seems harsh. Then again, if you get $80k in medical treatment, shouldn't you be required to pay it back if you get a windfall?

Reed means personal injury lawyers will have to hang on to settlement funds a bit longer than they normally do before cutting a check to their clients. They will have to determine if there are any bills outstanding with the hospital, which only happens when the injured party is uninsured. With insurance, no one has the right to grab onto the settlement (at least in Kansas and some other states). Net result is that poor people will suffer the most from this potentially precedential opinion.

If you suffer harm that results in uninsured medical treatment being given, make sure your lawyer knows about this case. It will impact you if you aren't careful. This type of subrogation almost eliminates the benefit of indigent and uninsured people suing for medical expense compensation. There must be more than just medical expenses to justify suing, such as punitive damage potential (reckless or intentional acts and not just random car wrecks), or calculable future economic damages (diminished earning capacity).

THIS IS BAD, BAD, BAD...

2011-02-11T15:45:00.000-06:00

The Kansas Court of Appeals just issued a ruling that pretty much slams the door to constitutional defenses to unwarranted demands for invasive breath and blood tests in DUI investigations. See State v. Edgar, No. 103,028 (KS. Ct. App. February 11, 2011). To summarize, if you walk the line perfect and hold you foot up a full 30 seconds without wobbling, using your arms to balance, or hopping, you may still be asked to give a blood or breath sample, which means passing the FSTs will likely result in you still being arrested and booked in jail. If you feel unsure and refuse the test, you'll have your DL suspended for a very long time.

Lesson to learn? You drink even a single beer at dinner and you stand a good chance of, at the least, being arrested and taken to jail even if you later pass the breath test. This case stands the Constitution on its head by effectively creating one class of search and seizure cases on the due process side of the ledger, and a special one for DUIs where due process isn't so important. Why stop with DUIs? Couldn't any crime involving health and morals justify setting the Constitution to the side for the sake of public safety?

This is scary.

Where have all the justice-minded prosecutors gone?

2011-02-10T11:16:00.002-06:00

More and more I am seeing a disturbing evolution in the mindset of prosecutors. Instead of applying common sense and even a true "sense of justice" to the cases they prosecute, they are going for the kill no matter the circumstances. My two most recent DUI trial experiences are examples of this trend. To start, the one I had yesterday resulted in an acquittal and the other is still awaiting a judge's decision on a motion we argued a couple of weeks ago. Both involve a similar fact pattern, at least as far as operation of a motor vehicle and what that entails is concerned.

First, the victory. The facts were largely undisputed. My client met a girl at a local bar. He got drunk. He was smart enough to realize that he was way too drunk to drive. The girl volunteered to take him home in his car. Her only condition was that they drive to her house a couple of blocks away first so she could make sure her baby was okay (her mom was sitting). They left at closing and she parked my client's car in front of the house next door to hers. She left the car running and went inside. My client had fallen asleep on the short ride over so wasn't sure where they were, only that he had left the bar with the girl driving. He awoke when she parked the car. It was cold outside. My client slid over the the driver's side and turned on the heated seat (he was driving it earlier that day to see if he wanted to buy it, so was playing with its features). Moments after he slid over to the driver's side, he fell back to sleep.

A concerned citizen called 9-1-1 to report the sleeping person in the car. The cop arrived and made contact. At trial the officer testified that the client told him over and over again that the girl drove, and they even tried to call her. The girl testified too, confirming what the officer said the client told him about how the car got to her house. She said that when she made it to her house two men accosted her and she ran to get away from them. By the time she returned to the car the client was already in police custody. She said she tried to call the client's cell phone to ask where he was, but never got an answer.

To make a long story short, the judge held that since the officer couldn't dispute the testimony that the car was left running before the client slid over and fell asleep, that he could not find that my client operated or attempted to operate the vehicle. In Kansas, courts have held that operate in the context of a DUI means "drive." See State v. Kendall, No. 87,384 (Kan. S. Ct. 2001). So there must be evidence of driving the vehicle or an attempt to drive, though no moving is required for the latter. This was a solid ruling by the court.

The second case involved a similar fact pattern yet resulted in a conviction in the municipal court. I am not criticizing the court; rather, I am bashing any prosecutor who thinks prosecuting such cases makes sense. It involved a young man who after the bar closed walked straight from the bar to his car across the street on a night when the temperature was in the 20s. He got in the car and started the engine so the heater would keep him warm. He fell asleep at closing and was spotted by an officer in the very same spot 5 hours later. The officer watched the immobile car for another fifteen minutes before he made contact. The defendant was dead to the world. It took the officer several seconds to wake him up.

At trial the officer made it clear that he never saw the vehicle move and that the defendant never actually said he intended to drive the vehicle away from its location. The only incriminating thing the defendant told him that night was that he was just "trying to get home." The defendant disputes that he ever made this statement and there is no video record of their interaction. The judge was torn when he ruled against us, and his decision was based on that one statement even though everything else pointed to a drunk guy who knew better than to drive home and was just sleeping it off in a warm car on a cold night. We appealed this decision to the District Court (this is the first court of relief for municipal cases in Kansas) and argued our motion to suppress/dismiss a couple of weeks ago. The District Court judge has not yet made a decision. I am hopeful.

Here's my beef with these cases. Shouldn't public policy reward people who, drunk as they are, wisely decide to either stay put until they can get rides from others or choose to sleep in their cars until they are no longer drunk? Actually, it does. The statutes and ordinances in question use the language "operate or attempt to operate" yet the case law and legislative history of Kansas DUI laws clearly indicate that Kansas lawmakers intended the laws to forbid driving or attempting to drive while under the influence. Indeed, the Pattern Jury Instructions of Kansas actually changes the word "operate" to "drive." So the legislators and appeal courts aren't the problem. The problem is boneheaded prosecutors who just want to get people convicted because they can. In both of the above cases, a justice-minded prosecutor wouldn't have fought tooth and nail for a conviction just because he could. A justice-minded prosecutor would have dismissed the cases before they ever made it to the court room. These cases were prosecuted by different city prosecutors, yet conversations I've had with county prosecutors compel me to think that these people are no more "justice-minded" that their counterparts in the city.

But before you think I am bashing these individual prosecutors, think again. For those at fault you must go up the ladder, beginning at the very top, the Attorney General. The AG's office in Kansas has made it clear that any prosecutor who amends a DUI case to other charges faces the prospect of being brought up on ethical charges. K.S.A. 8-1567(s) reads in pertinent part:

No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining.

This is the DUI statute subsection that such anti-justice prosecutors hang their hats on. But if the supervisors of these offices (the elected DA or CA in the county, or the chief city attorney in a city) gave their prosecutors discretion to "do the right thing," clients who did the right thing when they got drunk in the first place wouldn't have to pay hundreds and perhaps thousands of dollars to fight such frivolous and bad-spirited cases. Personally, I love trials, but it gnaws at my guts to think such power-hungry people are willing to force citizens who probably don't have very much money in the first place to spend those funds on defending ridiculous cases like the ones cited above.

The only safe sex for kids is no sex at all!

2011-02-07T13:12:00.000-06:00

A major reason my wife and I home school is the willingness of government educators to teach values to kids without fully considering the consequences of their actions. Sex education is a perfect example. Based on the false premise that "they're going to have sex anyway, so we should make sure it's safe sex," most every government school in Kansas has sex education programs in place. But there's one thing that these government educators are either are too stupid to consider or are refusing to integrate into their programs. They are teaching kids to engage in behavior that will turn them into registered sex offenders if an upset parent of a young girl or boy has a problem with her boyfriend and calls the cops. Here's the first statute for consideration.

21 CRIMES AND PUNISHMENTS
21-35 SEX OFFENSES

21-3503 indecent liberties with a child.
21-3503. indecent liberties with a child. (a) indecent liberties with a child is engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age:
(1) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or

(2) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.

(b) It shall be a defense to a prosecution of indecent liberties with a child as described in subsection (a)(1) that the child was married to the accused at the time of the offense.

(c) indecent liberties with a child is a severity level 5, person felony.

Notice what's missing. The age of the participants isn't an issue. If one kid merely touches the genitals, breast, or perhaps just gives the other a back rub, both participants can be found guilty of the crime of indecent liberties with a minor, a level 5 person felony (this will put an adult in prison for several years), which will result in the child being a registered sex offender for at least 10 years.

Also consider how easy it is for kids to to get nailed with an aggravated indecent liberties charge.

21 CRIMES AND PUNISHMENTS
21-35 SEX OFFENSES

21-3504 aggravated indecent liberties with a child.
21-3504. aggravated indecent liberties with a child. (a) aggravated indecent liberties with a child is:
(1) Sexual intercourse with a child who is 14 or more years of age but less than 16 years of age;

(2) engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age and who does not consent thereto:

(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both; or

(B) causing the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another; or

(3) engaging in any of the following acts with a child who is under 14 years of age:

(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or

(B) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.

(b) It shall be a defense to a prosecution of aggravated indecent liberties with a child as provided in subsection (a)(1), (a)(2)(A) and (a)(3)(A) that the child was married to the accused at the time of the offense.

(c) Except as provided further, aggravated indecent liberties with a child as described in subsections (a)(1) and (a)(3) is a severity level 3, person felony. aggravated indecent liberties with a child as described in subsection (a)(2) is a severity level 4, person felony. When the offender is 18 years of age or older, aggravated indecent liberties with a child as described in subsection (a)(3) is an off-grid person felony.

Sex between the ages of 14-16 qualifies. Petting between kids under 14 is prosecutable too (or those back rubs I referenced above).

Why aren't our "trusted" government educators telling our kids about them getting set up for living a life with a scarlet letter on their chests? Would you hire someone who is a registered sex offender? Would you give them a chance to explain that all they did was make out with a boyfriend or girlfriend before the big game? Or that all they did was practice the "safe sex" Mrs. Jones taught them to practice?

Ask yourself one more question? What kind of a parent would allow his kid to participate in such a class? I'll let you stew over that for awhile.

A little lawyer humor

2011-02-06T14:27:00.000-06:00

A friend in church shared the following story with me today. I am sure it's just a story, but you never know...

A small-town prosecutor called his first witness, an older lady who had been living in the town all her life. His first question out of the gate was, "Mrs. Jones, do you know me?"
"Yes, Mr. Johnson, I've known you since you were a baby. And I am very disappointed with what you've grown into. You lie, cheat and manipulate people with your fancy words and lawyer tricks, and you talk bad about them behind their backs."
The prosecutor wasn't expecting such a response. He was tempted to move on, but before his brains could tell his mouth to shut up, he asked, "Do you know the defendant's attorney?"
"Yes I do. I've known Mr. Brown as long as I've known you. He sells out his clients every chance he gets. If he hadn't connived his way through law school he would've made a great used car salesman. Heck, if the judge over there didn't give him court appointed cases he'd have no law practice at all."
Both attorneys were rendered speechless. Before either recovered from Mrs. Jones honesty enough to respond, the judge called them up to the bench. He hunched forward and said very quietly to both, "If either of you dummies asks her if she knows me I'll find you in contempt of court."

It pays to hire an attorney who actually answers your calls and attacks problems instead of running away from them

2011-02-04T11:29:00.000-06:00

Before I get to the heart of this article, let me start by admitting that I am far from perfect. I make lots of mistakes. Any person, attorney or otherwise, makes mistakes. The key to success in just about anything is not never making mistakes, but in how you deal with such mistakes. Do you attack them with gusto by confronting them and finding a solution, or do you hide hoping that the mess made by the mistake will just go away? I am the former. I attack them. Stuff happens in the practice of law. Dealing with such stuff in legal representation demands the attack posture, and this begins with being reachable by one's attorney.

The most recent Kansas disciplinary opinion, In re Ivestor, is yet another example of this truth. First, Ms. Ivestor moved away from her Wichita law practice. Then she stopped checking her mail and didn't bother telling her clients she was leaving. Then she ignored the case that led to the disciplinary complaint which naturally led to an upset client. After the complaint was filed and docketed with the disciplinary administrator's office, she took the bold step of telling the investigator to stop contacting her and her family members and simply refused to cooperate in the investigation process. In the end she was indefinitely suspended. The DA had no choice since Ms. investor gave them nothing to save her license with.

Why? I know this woman. I like her. She has always been a professional when I dealt with her. I even recall a few conversations wherein we talked about the lack of professionalism with other attorneys. I am sure she is dealing with some truly serious personal problems, but the end came about because she didn't attack the problem head on. She ran away. Then refused to acknowledge the seriousness of it and simply stopped communicating.

I have known attorneys who fall in and out of trouble with the DA (as in disciplinary administrator, not District Attorney) over and over again. At worst they get a set number of months of suspension (and for far worse allegations than Ms. Ivestor faced, as in multiple complaints from multiple clients), and usually end up with a diversion for a first offense, longer suspensions for subsequent ones, or, if the problem is drug or alcohol abuse, perhaps just a slap on the hand with a requirement of drug and alcohol treatment. The difference with these cases is that those attorneys respond to the allegations, they go to all hearings on their cases, and they change their behavior. If they once were tough to reach by clients, they change protocol so the clients can more easily reach them. If they once ignored problems, they modify procedures to attack them head on.

Sadly, just because attorneys haven't been suspended or disbarred yet doesn't mean they are reachable by clients and opposing counsel or that they clean up theirs and their clients' messes with a vengeance. I have been retained many times by clients who fired prior counsel for one reason, not being able to reach the attorney. They leave message after message with the attorney and never get a timely returned phone call. A mea culpa here for my current clients. I have been guilty of sitting on a message for a day or two. It is almost always the result of a periodic bench or jury trial, and sometimes lots of back to back dockets. But I do something with my clients that no other attorney I know does: I give all my clients my cell number.

Funny thing is that even though hundreds of current and former clients have my business card which contains my cell number, few abuse the privilege. I guess just knowing that their attorney is reachable is reassurance enough. They know I will return that message left at the office soon. And I most always do. If not, they can bug me on my cell phone.

So the lesson is simple. First, few attorneys have the guts to give all clients their cell number. If your attorney won't, get a new one. Second, few attorneys see fires as a good thing and they run away from them when they pop up. I would add that I know a few attorneys that will never admit that their mistakes caused the fires to begin with. If you sense this quality in your attorney, run away. Hire an attorney who can be reached when you need him, and one who fixes problems and doesn't run away from them when they occur, regardless of who caused the problem in the first place.

Divorce should be a four-letter word

2011-01-26T15:30:00.011-06:00

Divorce should be a four-letter word. Something not uttered or said in public. Something that is only said when one loses his or her temper, and afterwards is followed by deep regret, regret that the very thought of it crossed one's mind let alone worked its way out of one's thoughts and into the ether. There was once a time when that's exactly how the word was viewed. No more. Today, when things get tough and uncomfortable in a marriage, it's often the first thing a person considers.

I have been practicing domestic law in Kansas for going on five years now. After representing dozens of clients from the beginning to the end of divorce, child custody, child support and other so-called domestic cases, I am forced to come to a surprising conclusion. Divorce is almost never the ideal solution to one's domestic woes. Let me say that one more time. Divorce is almost never the ideal solution to one's domestic woes!

Consider what leads to the typical no-fault divorce. The couple has been married for ten or more years. They have two to three kids, ranging in age from 3 to 8. Both work with the husband making the bulk of the family's income, probably seventy percent or more. Each has his or her own set of friends and each spends substantial time in the evenings with those friends. He hangs out at a bar near work. She floats from one dance club to another, wherever her friends are on any particular evening. (How did they find time to procreate in the first place?) When they get home they feel a little guilty, but they don't want to admit that the cracks in the marriage were put there by both selfish people in the relationship. So they fight. They fight a lot, probably more times than they carry on regular conversations such as "how was your day?" or even "I love you." The first few times they got into these guilty disagreements they at least made an effort to not do so in front of the kids. Now they don't bother. The kids will be watching TV in the living room just a few feet away from them and one will inevitably blow up and yell at the other. Often it's something silly or insignificant like him not taking out the trash in time for the truck to empty it that morning, or her forgetting to add his deodorant to the grocery list. The other will yell back. A few times the recipient of the initial assault will just walk away and lock himself in his private man cave, popping in a DVD or perhaps click the TV remote to ESPN. She doesn't have a cave so turns her back on him and pretends to wipe down the kitchen countertop.

The divorce process itself usually begins with "it's better to get a divorce than for the kids to see us fighting all the time." One or perhaps both will see an attorney. The attorney will spell things out clearly, explaining that no-fault divorce is a simple, straightforward process. "Heck, if you both want out just let me draft the petition and orders and we'll make it a smooth break. You can get on with your lives." Some attorneys build their practices on no contest divorces, making it a career convincing people that getting along for the sake of the kids means letting the other walk away undamaged and unfettered.

Any idiot who believes in this line of thinking is, well, an idiot. It never works that way. The "friendship" along with the marriage will be ripped asunder. Future fights won't be tempered by the desire to preserve the marriage and children's psyche. There won't be a husband and wife working together to build a future, economic or otherwise, nor will they always consider what's best for the children. Sometimes they might even escalate their animosity toward one another to the degree that the object of the wrathful indignation will file a protection from abuse or stalking order against the other, thereby threatening that parent's job and making it more difficult for him or her to pay child support. Take heart, however. The wrongly accused parent can file a motion to reduce the child support so at least the one who started the fight will be paid less thanks to the trouble he or she caused.

Let's say for argument that this formerly happily married couple make it through the divorce process relatively unscathed. Assets are split 50-50. But this is illusory. In reality the one who gets the kids will be the one sitting pretty. Sure, he or she will have the burden of raising kids mostly alone, but the child support will help. Usually it's the woman who wins this fight. If the husband makes a good living, he is likely paying alimony too. For the uninitiated, he's forking over about 20% of his gross in child support and another 20% in alimony. Do the math. You give up 40% of your earnings and tell me your life is better. Tell me you won't have simmering anger in your heart directed at the person who seems to be getting the fruit of your marriage while you are stuck with the pits. If you do, you are lying through your teeth. But this battle isn't over yet. Each time the children cross an important age threshold, child support bumps up considerably (6 and 12 are the magic numbers in Kansas). So the lawyer of the lucky man or woman will advise taking the other to court each time such a threshold is crossed, assuring that once the bee hive calms down the lawyers will be there to shake it up again.

You can only take me at my word on this, that and the word of many of the families I've seen destroyed by divorce. The hate and bitterness that led to the divorce will escalate exponentially afterwards. Most ultimately lead to one or the other (or both) using the kids as weapons, leaving them spent and broken at the end of each battle. Kids of divorce are almost never stronger than their friends who have the benefit of married parents. They are forever weakened by their parents' selfishness. They will carry the scars of divorce forever. They will be more likely to divorce themselves when faced with similar challenges in marriage, and often much quicker to pull the trigger on their relationships. They will have very confused images of normal male-female relationships and will be more likely to have children out of wedlock.

Here's what I think. I understand why the victim of an unfaithful spouse would have a hard time ever trusting his or her spouse again. In such circumstances, I will even offer my legal services to this person. Ideally, we're not talking about a first time fling. People are imperfect. They make mistakes. But the spouse who time and again violates the marriage covenant by sleeping around most certainly deserves to lose his or her family. Personally, trust is everything to me. If I were facing living the rest of my live with someone I cannot trust, someone who slept with another man, I would probably leave that person too, so I will not be hypocritical and tell such a victim they should stick with the marriage.

Severe physical abuse or domestic violence is another justified divorce situation. As is the family that is abandoned by the husband or wife. All the repercussions of the above will likely happen to these people too, but for them it's a weighing process. The cost of not divorcing is much higher than divorcing. Indeed, it's even perhaps life threatening to stick if out in such marriages. Because of this inescapable truth I will not hesitate to represent clients who want to file for divorce in such situations.

For those I will not represent, namely, those who are so hard-headed, stubborn and selfish that they don't care how much their selfish decisions harm everyone around them, I have one thing to add: "Pride goes before destruction, and a haughty spirit before a fall." Proverbs 16:18. In divorce, your fall will be the equivalent of the World Trade Center collapse on 9-11. It will take out everyone around you. Consider the impact on your children and what your actions are likely to lead them to in their lives, as well as the spiritual implications you will face. "It would be better for him if a millstone were hung around his neck and he were cast into the sea than that he should cause one of these little ones to sin." Luke 17:2.

In the end, divorce is indeed a dirty word, or should be. Unless extreme circumstances exist it is virtually assured that no one involved in a divorce will be better off when the dust settles. All will be more broken afterwards than before. All will be less able to live normal lives. In nuclear war parlance, divorce, like the Cold War, is truly "mutually assured self destruction." No one will win. Each will end up battered, beaten and perhaps even totally and utterly destroyed. I urge you, therefore, as a domestic law attorney who has seen this situation play out over and over again, do everything you can to save your marriage when things get tough. Find a good marriage counselor, preferrably a Christian counselor who also believes that divorce should be the last option. Killing the marriage outright will only make your life worse. I promise.

Emotional response isn’t enough to fight scourge of DWI

2011-01-25T19:07:00.002-06:00

From Dallas Morning News:

When it comes to drunken driving — a maddeningly intractable scourge on our state’s streets and highways — we’re fed up. We want solutions and swift action. We want punishment.

We want Texas to do what it takes to keep these people off the road for good, even if it means locking up every last one of them and chucking the key to the prison door into the Gulf of Mexico.

If that’s an emotional response, it’s certainly an understandable one. Look through the haunting gallery of victims of drunken drivers; talk to firefighters and cops who have pried mangled bodies out of crushed cars.

Imagine your own child, girlfriend, brother, dead in an instant because some speeding drunk hit them like a bomb. There’s good reason for all that rage.

But public anger can’t be the only force driving public policy, a lesson that it has taken a lot of legislative trial-and-error to learn.

As emotionally satisfying as some of our most harsh and uncompromising anti-DWI laws have been, they have not been uniformly successful.

For instance: Some officials are now questioning the usefulness of a 2001 get-tough law that allowed instant license revocation for any driver who flunks or refuses to submit to an alcohol test.

Yes, it sounds severe, and it is. But some prosecutors point out the unintended consequences of the measure: People often appeal those suspensions.

The appeals not only clog up the courts and cost the state a lot of money, but they give defense lawyers a free preview of the evidence against their clients — making actual criminal convictions harder to get.

Shannon Edmonds, an official with the Texas District and County Attorneys Association (and obviously no friend to DWI offenders) told the Austin American-Statesman that the time and expense of pretrial license suspension isn’t justified.

“The simplest way to put it is that the juice ain’t worth the squeeze,” Edmonds said.

Likewise, there was a furious outcry in December when a bill was filed that would allow deferred adjudication for first-time DWI offenders.

Deferred — a “free pass,” critics contend — for any DWI conviction was outlawed in Texas 25 years ago. How in the world can we fight the drunken-driving problem by backing down on punishment?

In this case, maybe we can. The bill, which still has its critics, has even earned the cautious endorsement of Mothers Against Drunk Driving, the most influential of all anti-DWI lobbies.

As counterintuitive as it initially sounds, it could work by routing first-time offenders into sternly supervised probation. And, unlike deferred adjudication for other offenses, this one would only stay off the records of those who never reoffend. Get a second DWI, and the first one pops right back up like an ugly secret.

The measure would give our creaky, backed-up, appallingly overloaded system a little breathing space to focus on the “hard-core” cases — repeat offenders who easily weasel through the openings afforded by backlogged dockets, trial delays and lesser-offense plea bargains.

Like it or not, that’s the reality we have to work with.

As natural as it is to respond emotionally to the mayhem drinking and driving causes, the long-term outcomes have to be guided by logic.

“We want drastic measures and instant punishment,” said Edward Jimenez, a San Antonio man whose 7-year-old boy, Matthew, was killed five years ago by a drunken driver. “That’s how I feel, but it’s not always logical. There’s a process that has to happen.”

Jimenez believes the real change will only come once the public widely views drinking and driving not only as a technical violation, but as a moral one. We need to fear not just getting caught by the cops, we need to feel the very real fear that, by driving while intoxicated, we might kill somebody.

“We need to get to the point where everybody sees drunk driving as a crime, not just because the law says not to do it, but because it’s not right,” he said.

“It should be something that’s” — he groped a minute for the right word — “shunned.”

In other words, we need a sea change in our culture. Until we get it, managing the system is all we can do. ◼

Not just any arrest will do...nor just any attorney!

2011-01-21T15:30:00.000-06:00

You're driving along the road minding your own business. Suddenly and without warning you see a flash in your rear view mirror. It's a red and blue flash, intermittent, telling you that a cop wants you to pull over. You do as you are directed and soon find yourself talking to a police officer through the side window. Unbeknownst to you, your license is suspended for a ticket you forgot about two years before. So the officer has you step out of the car and assume the position. Moments later you are cuffed and in the back of the patrol car being taken to jail, arrested for "Driving While Suspended." But your adventure is far from over.

Earlier in the evening you had a beer or two over dinner. So a jailer claims he smells alcohol on your breath. They whisk you away from booking and sit you in the Intoxilizer room. You are read some info, then asked to take a test. You sense that something isn't quite right and refuse the test. You are handed a piece of paper that says your DL will be suspended for a year for refusing the test request and that you must request an administrative hearing within 14 days of arrest if you want to contest the suspension.

First, before I get into the main point of this post, there is more wrong with the above than just what I am about to tell you. Namely, without any field tests or more observations, the mere smell of alcohol is grossly insufficient to give the officer reasonable suspicion of impairment to request a breath test in the first place. However, the Kansas Appeals Court issued an opinion today that further solidifies the need for an officer to arrest you for suspicion of DUI and not something else for him to be able to request a test. See Schrader v. Kansas Dept. of Rev., No. 103,176, Syl.2 (Kan. Ct. App. January 21, 2011). Hence, the above scenario involved an arrest for DWS, not DUI. Thus, your attorney would need to point this out at the DL hearing and at the suppression hearing to (a) save your license, and (b) prevent the prosecutor from drawing a negative inference from the refusal at trial.

The ruling in Schrader is really nothing more than a confirmation of what courts have interpreted the implied consent statutes to mean in previous cases. Sadly, many attorneys who defend clients in DUI cases skip right over this very basic requirement. Clients who get arrested on child support warrants, paraphernalia or marijuana possession, or other lesser matters get charged with DUI as an aside and their attorneys never challenge the breath or blood tests on this ground, even though it just might be the most slam dunk issue to argue. The lesson to learn is not some new precedent. The lesson to learn is that you should only hire an attorney who knows what he's doing (fewer of these out there than you'd imagine). After all, your freedom and money is at stake.

A good inquiry is how often your potential attorney reviews new cases. Weekly is ideal, at least in Kansas. Our courts release new opinions every Friday. If it's any less than once a month, move on. The law is changing all the time. The number of times I've gone to trial or hearing with a freshly issued opinion in my trial war book is too numerous to recall. Many times such last minute revisions of the common law and statutory interpretations helped me to win. A few times they compelled us to work things out to spare the client the wrath of the judge. A failure to review new cases weekly might have doomed us. So, demand such vigilance from your attorney too.

If you don't want lawyers to read your messages, don't use email!

2011-01-20T07:43:00.000-06:00

Workplace emails to your attorney are not privileged communications and will therefore be discoverable by your employer and whomever else wants to prosecute or sue you, says the Califoria Appeals Court. (Enron, Madoff, and a plethora of other financial/white collar criminals are to blame!) Sadly, this is a trend and is likely to be the law (or will be soon) in most other states. I will add a few Kansas cases later when time permits. I have researched this issue and know it's the case here too.

There but for the grace of God go I, so maybe I shouldn't tell so many lawyer jokes

2011-01-17T10:26:00.000-06:00

People's opinion of lawyers can turn on a dime. One day they are bashing lawyers as those most responsible for the downward spiral of America, mostly due to class action and criminal defense lawyers. The next they find themselves or, more likely, their children facing legal trouble and are sitting in their lawyers' offices begging the formerly bashed lawyers to get their babies out of trouble, or maybe they are sitting across the desk from a lawyer with their neck in a brace after a serious traffic accident.

The fact is people are not perfect. Sometimes they make mistakes. Sometimes those mistakes result in legal problems. As our country has progressed through time things that were once consider rights of passage are no longer tolerated by those who make laws. For example, when I was a kid we sometimes messed with neighbors by snatching an errant Christmas or Halloween decoration, then returning it later with no permanent harm done. In college one fraternity would snatch things from another and put the snatched item in a public restroom, an act usually proceeded by a call placed to the victimized fraternity so it could retrieve the artifact before the item was stolen by someone not friendly to either frat. How about the way society views drunk driving? There was a time when the kid who makes one mistake was taken home to his parents and spared the legal black mark, with the officer knowing that the justice inflicted on the kid by mom and dad would be far harsher than anything the law would dish out. Times have changed.

Now every single scenario spelled out above, if reported to the police, will most assuredly end up with criminal charges being filed either in municipal, juvenile, or county court. Now, most assuredly, any resulting deferred prosecution or guilty verdict will be a hurdle to the future prospects of the perpetrator, unless he is a professional athlete. The net result of this new reality is that often the father and mother who once bashed lawyers has a change of heart. They now want a good attorney who can get their baby off scott free, despite the illegal behavior of their child.

The cliche "there but for the grace of God go I" usually doesn't apply. Most of the time, the child is doing things no child of responsible, involved parents would do. Usually mom or dad is an alcoholic (or both are), or have a very troubled marriage, or, most likely, it's a single parent household that was either the product of a broken marriage or no marriage at all. (I'm seeing more and more of the latter each year.) However, sometimes it does apply, and when it does the tune changes.

You and I wouldn't need lawyers if we acted like mature, responsible citizens instead of self-indulgent children (except, of course, for more pleasant legal matters like drafting a will, incorporating a business, or other legal issues that are proactive and not in reaction to dumb stuff). In addition to doing stupid things like losing our temper and hitting someone, or driving drunk, we find ourselves getting mad or defensive over things a little civility might have fixed without lawyering up. We get upset over petty things. The people we get upset with also act irresponisbly, so we run to lawyers thinking the responsible thing to do is lawyer up. We pay hired guns to fight for us. We tell our lawyers what to say and do, so the lawyers get mad and angry and cause all kinds of grief for the other sides. They win our cases. We get lots of money. We smile as the cases come to a close. Then we resume lawyer bashing as soon as we no longer need our lawyers.

So what's the solution? Either we can stop taking our grievances to court, act more responsibly in all things, or we can acknowledge that there's a place for lawyers. Personally, I like a good lawyer joke every now and then, but if you let the jokes affect your opinion of lawyers, you are missing the point. Laughing at ourselves is a good thing, but adopting an overall negative opinion of someone that you will need the help of some day is not.

Better hire a competent DUI defense attorney and an expert witness if you want to win your DUI trial

2011-01-07T11:34:00.000-06:00

When I tell people that the margin of error on intoxilizer machines used to test breath alcohol content is .005, most say that's pretty accurate. When I tell them that this means that blowing .084 in Kansas is a crime (more than .08) and that the .005 variance means they were as likely at .079 and thus not over the legal limit as over it, they are often amazed that the State would rely on such a device.

Sadly, the Kansas Supreme Court just made things worse by holding in Stage v. Finch, 101,136 (Kan. S. Ct. January 7, 2011), that such a variance is a question of fact for the (mostly ignorant) jury to decide and not subject to dismissal by a judge. Granted, if you want to fight a case like this you need an expert to testify about this variance, but it seems to me that the Court should be able to rule on admissibility if the numbers are given to him by an officer.

To make a long story short, you blow .08-.085, you better pony up an extra $3k or more to hire an expert witness and make sure the jury will believe him more than the State's hired gun.

Texting while driving is now a crime, and so is making calls in a moving vehicle for some Kansas drivers

2011-01-01T12:34:00.001-06:00

Texting, emailing, and basically anything involving a cell phone that involves fingers typing on the phone or any "wireless comminications device's" keypad or keyboard is now illegal in Kansas. See SB 300 (text and K.S.A. number not available until after January 3, 2011). Thus, if an officer sees you messing with your phone, he will pull you over and give you a ticket. The fine is $60.00 plus court costs, so, depending on the court, if you get cited for this violation, you'll be out something north of $100.00. But wait, there's more! If you or your children are driving on a learner's permit or intermediate DL, the youthful driver can't even use a cell phone to make or take calls.

For a pretty good lay person's review of the law, see this Wichita Eagle article.

New Year's Resolutions for wise souls

2010-12-31T17:43:00.000-06:00

Each new year brings on the inevitable. The health clubs will fill up to capacity in January, then empty out again in March. We make promises to loved ones and ourselves to be better people in the new year, to eliminate bad habits and replace them with new ones, then find ourselves in the same old rut by June. Personally, I'm not big on the "resolution" thing. I think it's a much better idea to have reachable goals that, when reached, will make us more secure and more prosperous. May I make a few suggestions from attorney to client?

(1) If you do not have a will yet, get one. It's always better to consult an attorney and have him draft one based on your actual needs. It's also best to do your whole estate plan, including a Living will, Powers of Attorney, and the Will or Trust itself. At the least, there are a few on-line legal form options. It's better to have any will than no will at all, but you and your family will still be better served if you talk to an attorney about this very important responsibility.

(2) Shed bad habits and replace them with good ones. Do you drink too much? Stop before you face bigger problems, like the DUI that will change your life for years to come (as in conviction and DL suspension). Studies show that children of people with drinking problems will have drinking problems too. Do you want that weight on your shoulders? Do you smoke pot, or use other illegal drugs? They are illegal so you should reconsider the wisdom of imbibing in them. Did you know that marijuana is one of the few smells that will give an officer more than sufficient PC to search your car? Get stopped after lighting up a reefer and you will get busted. A second pot bust in Kansas is a felony. For the regular recreational smoker, it's just a matter of time before you get convicted of felony possession. Unless you are a professional sports star, you will immediately see your career options diminish. Not a habit worth the cost.

(3) If you operate a sole proprietorship business, get protection for your family and personal assets. Set up an LLC or a corporation. Otherwise, if you or your employees mess up and hurt someone or cause damage to property, the client won't be able to sue you personally. Your family's savings and investments will be protected.

(4) Get out of debt. Car loans, boat loans, credit cards, and even a residential mortgage sucks money out of your bank accounts. The things you buy with such debt are not investments. (Even your house! Ever get money back at the end of the month on your home? No.) The interest on these debts makes the price of the items purchased pale by comparison. Get rid of debt and you can put that money into savings and investments.

Here's a promise from an attorney who sees what happens when the stress caused by not considering the above in one's goals and objectives becomes overwhelming. You will eliminate many of the stupid choices people sometimes make that end up with them being hauled into court, whether as a criminal defendant, heir of an estate tied up in probate, as a businessperson being sued by clients with everything on the line, or as a plaintiff in a personal bankruptcy. Hit those objectives running in 2011 and not only will 2011 be a good year, but the next few decades of your life will be much smoother than if you did nothing. If you need help with the legal matters involved with the above, call me. I will be glad to help.

Have a Happy New Year!

You have the right to physically discipline your children, but use wisdom

2010-12-31T10:18:00.000-06:00

I have lots of friends who believe in the biblical maxim "spare the rod and spoil the child." Indeed, I share this belief. Fortunately, wise parenting usually results in the rod gathering dust after one or two uses. Sadly, not everyone out there accepts this truth. The horror stories of clerks in grocery stores reporting moms who pat their young ones on the rum when they misbehave in Kroger are too numerous to list here. SRS, it seems, appears to believe that anything other than a cross look at a child is tantamount to abuse. Maybe this "Dr. Spock" mentality is why we have such a problem with slackers in the past generation or two of our young people? I digress.

Yesterday the Kansas Appeals Court issued an opinion that gives us parents committed to effective discipline some protection against overzealous SRS case workers and county prosecutors. In State v. Wade, No. 102,433 (Kan. App. Ct. December 30, 2010), the Court considered whether the judge should have instructed the jury that it was an affirmative defense to exercise force as a form of discipline (defendant was charged with misdemeanor battery for striking the child) when the facts support such an argument. In Kansas there is no statutory defense. It is embedded in case law opinions going back a hundred years or so, hence, it is what is called a "common-law defense." As the court held in syllabi 4:

In Kansas, the affirmative defense of parental discipline is based on an objective standard. It is a defense to the charge of battery if a parent's use of physical force upon a child was reasonable and appropriate and with the purpose of safeguarding the child's welfare or maintaining discipline.

Additionally, as to whether the court erred in failing to instruct the jury on the defense, the Court held in syllabi 5:

Under the facts of this case, we hold the trial court had a duty to instruct the jury on the affirmative defense of parental discipline and the failure to properly instruct the jury denied the defendant due process of law.

To summarize, yes, you may use physical force to discipline your children, and, if you get charged for carrying things a bit too far, you can claim the defense of corporal punishment. However, it is important for all of us to not go too far in physically disciplining our children. Both as a prosecutor and as a defense attorney, I have seen numerous cases where children were forced to grow up in homes where fear of physical abuse (not sexual abuse just discipline-focused abuse) had turned their childhood into a very long nightmare. What do such children do as soon as they are old enough? They rebel against what they perceive as ungodly, unloving and totally illogical authority. Many end up my clients. They are often treated better in "the system" than by their own parents.

For my own home, I cannot recall the last time we actually had to spank one of our daughters. Years ago perhaps, but so long ago that the moment doesn't come to mind. Suffice it to say it only took one or two wise uses of the rod to make the lesson stick. My three daughters aren't perfect children, but they are pretty close to perfect. I do recall my own childhood and one incident. My mom was at wits end and reluctantly spanked me (truly, it hurt her more than it did me!). I didn't follow her instructions during this spanking and put my hand in between my bottom and the paddle. The paddle struck my knuckles. It really hurt. It was the first and only time I was spanked. Lesson learned.

Spare the rod and spoil the child, but only use the rod sparingly. If you do, you won't have any problem defending yourself in a court of law if it comes to that.

Unlike professional athletes, attorneys who drive under the influence of alcohol get suspended for more than a few games or even one season

2010-12-24T22:45:00.002-06:00

In re Johns is an interesting case for consideration. (Click on the title of this post to read the entire Kansas Supreme Court opinion.) A lawyer picked up a third DUI. As a result he lost his ability to practice law for two years. It seems to me that if our sports stars and hollywood actors received similar punishments, our children might behave better. Just a thought.

We are our brother's keeper

2010-12-17T10:42:00.001-06:00

The Wichita Eagle ran a series on child molestation the past few weeks. For details, click here. It is a heart wrenching account of two twin sisters who were terrorized, brutalized, raped and sodomized by their brothers from an early age all the way up to their teen years. Only after a neighbor reported the abuse did it stop. Suffice it to say that the damage inflicted on these poor girls will last forever. They will never fully recover from the horror of what went on under the ignorant eyes of their own parents (the mother was beaten and abused by the father, so there's at least some sympathy due her too, although not much).

Years ago I believed that every single person facing criminal charges deserved the "benefit of the doubt." An attorney had to believe the client. I learned something early on. This might be applicable to the DUI or DRUG defendant, and even most of those charged with battery, assault and other crimes where there are two sides to a story, but something interesting happened on the one case I took involving child sexual abuse. Upon review of all the reports, witness statements, and other evidence I found the client harder and harder to believe. In the end he left a suicide note that blasted the stepdaughter who had leveled the charges, claiming that she was trying to break up the marriage between her mom and the client. But giving up before his day in court left me wondering...

If I were falsely accused of a crime, would I kill myself before getting the chance to prove my innocence?

There was something else about the case that bothered me. Pornography. The man's dresser was stuffed with pornographic movies. Part of the allegations was that he would have the girl come into his room when mom was away and they would watch the movies together. He denied doing such a thing, and even claimed that he was a "Christian." So then, why did the police find porn in your room? He claimed it was something he and his wife enjoyed together. Really? Still porn. Still sin. Still disgusting.

After he killed himself I reviewed the case file even deeper, and made a few follow up phone calls. a few years before the man was brought up on abuse charges while working as a guard at a state correctional facility. There were some sexual offense allegations then too. In the end I found myself believing the victim and her mother. In the end I realized something I had been warned about. Sex offenders almost always lie. They do what most defendants do, try to justify their actions, but go one step further by lying to cover up the truth. Other cases involving drugs or even crimes of violence involve truth with justification. Sex crimes involving minor children never include truth coming out of the mouth of the defendant. They know that even the smallest degree of truth will fry them. The crime is that heinous.

I made a decision after that case. I drew a line. Most defense attorneys don't draw such lines. They will take on any case that involves a fee. I will not take on sex cases, even adult ones. Read the Eagle series and you'll see why.

This post is a little different than others I've done. I wrote this post to make you think, to make you consider what you would do if you knew that some little girl or boy in your neighborhood was being abused. I hope you will do the right thing. I hope you will protect that child by reporting the situation to the authorities. We don't need witch hunts going on, so make sure it's a case of clear abuse and not just someone who does things differently than you do. We home school to protect our kids from the negative impact of government schools, be it poor education quality or bad influences from some teachers and classmates, and some might think us weird. This is not what I'm talking about. Read the series and you'll pick up some of the "tells" the Christian family across the street from the victims noticed. Then be vigilant. Be your brother's and sister's keeper, or at least their protector.

Know the foundations of your country and its laws, or else!

2010-12-16T18:01:00.009-06:00

Listening to the talking heads on the TV and radio discuss the latest brouhaha on extending the tax cuts compelled me to consider one thing (among many others) our education system is grossly insufficient in teaching our children: the Constitution and the foundations of our Republican form of government.

When I was in a government school (K-12), I at least had the benefit of those Saturday morning cartoons. Check it out...

What if all of us were informed about what the Constitution actually means. For example, consider the concept of the enumerated powers. Article 1, Section 8 enumerates the powers of Congress. Moreover, it reserves all those powers not so enumerated to the states. Decades ago (roughly 4 decades after Woodrow Wilson pushed for public funded education), our so-called leaders began redefining what were once crystal clear terms, such as "The Commerce Clause." It reads, "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Back when the nation was founded this meant that the federal government was the only authority with the power to control the flow of goods to, from and between the states (such as regulation highways, roads and later, railroads). Now, our Congress is claiming that making you and I buy health insurance is also regulating commerce since allowing people to opt out will increase the premiums of others.

How are they able to get away with this? Simple. Starting with Roosevelt and his welfare state policies, we have allowed our self-interests to blind us to the million tiny cuts such manipulation of the words of our Constitution has inflicted on what were once clearly stated and precise words. Hence, it now means whatever politicians want it to mean. Now, what is the rule of law? It's amorphous, ever changing. In the words of the modern, left wing law professor, it's the "Living, breathing Constitution." Who needs amendments when all you really need is a judge who, with a wink and a nod, with let you manipulate the Constitution to mean whatever you need it to mean?

People, wake up! Read the Constitution. Do not let a few men whose knowledge represents a thimble of the wisdom of our Founding Fathers change what we are about. Let's take back America one election at a time.

You can no longer merely object to preserve an issue for appeal. Your attorney better have a stack of cases and statutes in hand.

2010-12-10T12:42:00.001-06:00

Sometimes it is tempting to skim over case opinions. First glance tells us there's nothing relevant to our field of practice. DANGER! When this is our method or legal research we often miss the trees for the forest. This is not necessarily a good thing. Case in point is State v. England, No. 102,685 (Kan. App. Ct. December 10, 2010). Embedded in Syllibi No. 3 is the kernel of wisdom that will effect every case that goes to trial. To paraphrase, merely objecting to a witness, opposing counsel or the judge will no longer suffice to preserve an issue for appeal. The attorney must be able to cite to specific authority.

Lesson to learn? Hire an attorney with trial experience and ask him how often he reads his courts' case opinions.

DUI check lanes are constitutional if done properly

2010-12-09T15:47:00.008-06:00

I read an article the other day about Texas moving to legalize DUI check lanes. As it stands now, Texas law enforcement is banned by statute from using this tool. The article quoted several sources who claimed that check lanes are unconstitutional. This is not the case if they are done properly.

Here's an example of one thing that will render such a check lane legal. The WPD announced today in the Eagle that they were conducting a check lane on Kellogg Drive this Thursday. This is called notice. This is not mandatory to uphold the legality of a check lane. If the road is big enough and signs are posted far enough up the road to allow a driver to avoid the lane, this also renders the resulting stop legal. See State v. Jackson, No. 77,376 (Kan. S. Ct. 1997), for a full analysis of what it takes to uphold a check lane stop as legal.

In summation, don't go yelling your rights have been violated just because the police caught you driving drunk at a check lane. They may have done so, but you should probably hire an attorney who knows what to look for in the police reports and public records to be certain one way or the other.

NTSB pushes for more severe measures for hard-core drunk drivers

2010-12-08T07:59:00.002-06:00

Don't even think about opening a business before you talk to an attorney

2010-12-03T11:21:00.003-06:00

It's the American Way. You have a vision for a business that serves people. Maybe you are an outstanding carpenter or painter, or you just have the eye of a landscaper. So you hand out flyers in your neighborhood and church and start taking calls for jobs. You do well. You rake in several thousand dollars and are really busy. All your customers are satisfied. But then the unimaginable happens.

One of your workers, a so-called subcontractor, has a horrible accident at a work site. He loses an arm or leg, or maybe he dies. His family sues you. You didn't have workers comp insurance. Also, you are a "sole proprietor" and did not have adequate insurance. They take you to court and not only take your business, but your family's home and savings. Personally, I am tempted to call you "dummy" for letting such a thing happen. It was so easy to fix.

An attorney would have advised that you not even think about going into business without a corporation or Limited Liability Company filing. That is even if you don't have insurance. All the guy's family could do in such a scenrio is take away your business. Of course, you should have insurance too. That way you keep the company as well.

The above nightmare isn't limited to employees. The same logic applies to accidents that harm your client's property or even people who happen to he harmed by the wake of such negligence.

Simply put, don't operate any business without some sort of corporate umbrella protecting your own and your family's assets. The fallout is simply too great.

If you can't do the time, don't do the crime...unless the presumptive sentence is disproportionate to the facts of the crime charged

2010-12-03T11:01:00.000-06:00

As a conservative I am often torn between my duties as a criminal defense attorney and my belief that one must reap what he sows. As Romans 13:1-7 tells us, the government bears the sword of justice for a reason, to punish wrongdoers. Hence, "if you can't do the time, don't do the crime." However, law should give judges some room for mercy and proportionality of sentences. For example, I am often frustrated by the DL suspension portion of DUI statutes. The idea that a first time offender who may have never been in trouble before will lose his DL for up to one year is absurd. Such disproportionate punishment often results in the loss of employment and all that goes with it.

Today I read a case opinion issued by the Kansas Court of Appeals that gives me hope that justice and mercy will once again be viewed together despite the existence of the Kansas Sentencing Guidelines (hereafter KSG). But first, know that the KSG typically binds judges to punishments dictated by the Kansas Sentencing Commission unless special findings are made to depart to probation or a cut in time. In State v. Dillon, No. 102,724 (Kan. Ct. App. December 3, 2010), the court considered whether a court had to consider a defendant's motion to depart based on an argument that the guideline sentence was disproportionate to the crime charged.

A brief of the facts of the case is in order. The defendant was a sexual offender. At the time of his initial sentencing the Kansas statutes required him to register with the county in his birth month and then every six months thereafter. Then the legislature changed the law assuming that the average criminal defendant not on probation could do complicated math calculations (I am being a little bit sarcastic here) by requiring birth month registration and every four months thereafter. Six months, easy. Four months, not so easy. Granted, the repercussions are such that you would think that a person would buy a calendar and make a note, but the reality of life often distracts. For proof just show up at traffic court and count the number of people asking the judge to lift warrants due to their failure to appear at initial appearances. Keep it simple and the purpose of such laws will be satisfied.

To make a long story short, Dillon missed the mark by a month or two. That's all. He merely assumed the birth month and every six months thereafter would suffice. It was the law in effect while he was on probation and he assumed it still was the year he missed his follow-up registration requirement. Given the fact that he wasn't on probation and therefore didn't have a PO to hold his hand, some leeway should be given, at least in the first year after such a change. Not so in the opinion of the District Attorney's Office. They came at him will all barrels blazing. Missing the mark by two months meant Dillon, under the guidelines, would have to serve 114 months in prison. So Dillon's attorney argued for a durational and dispositional departure. He asked the judge to reduce the time and put his client back on probation.

The court refused to listen to the proportionality argument and imposed the presumptive sentence. The Court of Appeals held that "the district court denies due process if it refuses to even to consider the proportionality of the sentence." Ibid. at Syl.¶2. Simply put, the court should have at least listened to Dillon's argument.

So, take heart. If you ever find yourself staring down the barrel of a disproportionate sentence under the KSG, you can at least argue for a departure. Sadly, that doesn't mean the court has to depart, only that you can ask and the court must listen.

Don't drink and drive. AT ALL!

2010-12-02T11:25:00.003-06:00

Several years ago I decided to stop drinking completely. Not a beer. Not a glass of wine. Nada. Why? One too many clients who up until that one night of partying had never been in trouble, then made a single mistake of driving under the influence which led to a loss of his DL and the job that required it. I vividly recall the tearful consult. The client made really good money, as in 6-figures, and he was the sole financial provider. They had just bought a new home that carried with it a $2k per month house payment. They had another $1k in car payments, and lots of other bills people have when they live the upper-middle-class lifestyle. He was a salesman who had to have his DL. Without it he was unemployed and likely unemployable at his current income level.

He lost his license for 1 year. He lost his livelihood for much longer.

I've seen this play out a few times. While many of those cases ended up in acquittals on the criminal side, the DL suspension is a much different matter. In Kansas we can't even challenge the legality of the traffic stop anymore, just operation or attempted operation of the vehicle and reasonable grounds to believe someone is under the influence, followed by protocol issues.

These cases usually end with the question, "Was it worth it?" The answer is always "no." Kids get pulled out of private school. Spouses have to work outside the home. Houses get sold and households downsized. Sometimes bankruptcy follows if the family is overextended in the first place (and most American households are).

Why do I no longer imbibe in alcohol? "There but for the grace of God go I." I do not have a religious objection to drinking alcohol. Even Jesus turned the water into wine, and not the cheap box or bag-o-wine, but the good stuff. See John 4:46. But back then you walked where you needed to go, or rode a horse or donkey. Riding under the influence wasn't a crime. Such modes of transportation don't kill people, unless you fall off the back of your beast of burden head first. For me the decision was easy. I will not let my addictive personality torture my loved ones. If I lose my license, at best I will inconvenience my wife from 30 days to a year by forcing her to drive me where I need to go. At worse I run the risk of having my law license suspended for an extended period of time and, therefore, face a dramatic drop in income (as in to zero dollars).

In my youth I am sure I drove at times when I shouldn't have. Had my youth been lived today, I am equally sure the increased scrutiny of intoxicated drivers would have likely resulted in a traffic stop and perhaps a DUI charge. Seeing what I see on a daily basis, it is simply not worth it. I have never had a DUI. Yet I already know better than to drink at all and then drive. The cops smell alcohol emitting from totally sober people. One beer? Forget about it.

Do you want to ensure that you will get a DUI in your lifetime, now or later? Keep drinking socially and driving home afterwards, one beer, two beers, or more. You will be subjected to field tests and you will eventually be charged for DUI. Do you want to ensure that you will never punish your children for your poor choice to drive under the influence? If you drink even one beer, let someone else drive, or call a cab. Or don't drink any alcohol at all ever again.

Finally, the above applies doubly so if you've received a DUI already. No matter the amount of alcohol in your system, you will be suspended for a year. If you manage to win the DL hearing, you have a chance to get restricted DL privileges after 45 days of suspension only if your BAC was under .15. If you refuse, you're done for 2 years. Is it worth it? I think not. Drink a Coke or Pepsi, for goodness sake.

To reiterate, don't drink and drive. AT ALL!

Drugs found in 33% of drivers killed in traffic accidents

2010-12-01T07:28:00.000-06:00

USA Today reports today that one third of drivers killed in traffic accidents have drugs or alcohol in their system. Frankly I am surprised the number isn't higher. Indeed, as a DUI defese attorney, every time I hear of an accident where people are injured or killed, my first thought is always, "which car had the drunk driver?" Follow up stories almost always confirm this intuition.

In summation, don't drink and drive, or dope and drive. It's not worth the risk to you or others.

Have a happy Rodney King Day!

2010-11-24T13:04:00.001-06:00

Today I will refrain from talking about airport security checkpoints, violations of probable cause, and other legal issues. Interestingly, my desire not to blog about these important and timely issues happens to coincide with a relatively quiet Kansas Appeals and Supreme Court opinion publication day. Simply put, nothing earth shattering came out today. Do you think that maybe the state's highest courts are acknowledging the sanctity of the Thanksgiving holiday? Probably not. Sadly, I can't say that my day was devoid of legal troubles for my clients.

Domestic Court. It seems that during the most solemn times of the year, what should be a time of thanksgiving becomes one of turmoil. Case in point, I am representing a client who is the frazzled mom and a child sired by a real piece of work. This guy drifts from one state of mental psychosis to another. Fortunately, he has enough lucid moments in between as to fool the courts just enough to keep his visitation rights intact. The good news is that he is in contempt of court. We filed a motion to find him in contempt but couldn't get it set for hearing until the 6th. Then he started acting downright nutty again. The child's doctor made a note in the records on the 18th that she said he hit her and "roughed her up." So we prepared an Emergency Ex Parte Motion and Order terminating visitation until our hearing on the 6th. The motion was granted so the child is now protected.

Yet one more example of "domestic bliss" compelled me to dedicate this day (certainly not tomorrow) to a cultural icon, Rodney King. Remember Rodney? He led police on a high speed chase, jumped out of his car and acted a little nutty, then got tazed and beaten over and over again before the police finally restrained him. To be clear, the police did use excessive force, but Mr. King, had he been in possession of all his senses, likely would have gone down and stayed there much sooner than he actually did. As it was, the incident was recorded and he walked away with a $6 million paycheck.

But that's not the point here. To quote Mr. King's immortal words, "Can't we all just get along?" Well, what say you? Can we or can't we? In case you need inspiration, see the below video clip.

So, to celebrate the season, let's get along. Don't fight with each other and you won't need to hire me to represent you.

Kansas Supreme Court rules that even though the statute used to justify your search is illegal doesn't mean the officer was wrong. Huh?

2010-11-19T11:33:00.001-06:00

The past two years have seen some major changes in Kansas search and seizure law. This was begun by the U.S. Supreme Court's decision in Arizona v. Gant, 129. S.Ct. 1710 (2009), wherein the Court found vehicle searches impermissible absent probable cause to believe a crime necessitating a vehicle search had been committed. Hence, searches incident to arrest and per consent were rendered illegal. Kansas issued its own ruling in State v. Henning, No. 98,118 (K.S.Ct. 2009), finding unconstitutional its own statute that permitted searches of vehicles for evidence of "a crime" and not the specific crimes supported by PC. Sadly, there's been a gurgling below in Federal District Courts as well as state appeals courts that hinted at gutting these opinions by the cure-all "good faith" exception.

The good faith exception will cure an otherwise illegal search if the officer believed the search was legal, even though it was not.

In State v. Daniel, No. 101,622 (November 19, 2010), the Kansas Supreme Court has stubbornly applied "good faith" to cure any and all searches conducted under the authority of the unconstitutional vehicle search statute referenced above. The good news is that most of those cases are long over. We're talking before 2009. Still, it is amazing what lengths the courts will go to uphold what they themselves have dubbed illegal conduct.

Only a jury can send you to prison if the State of Kansas says you should get probation

2010-11-19T11:02:00.001-06:00

Today the Kansas Supreme Court issued a very important decision on the issue of upward durational and dispositional departures in felony cases. See State v. Duncan, No. 99,463 (November 19, 2010). First, you should know what is meant by durational or dispositional departures. Kansas has adopted sentencing guidelines for felony offenses. These are promulgated by the Kansas Sentencing Commission and reviewed each year. Most felonies are classified from Level 1 to Level 10, with some being non-person crimes (i.e., forgery, blackmail) and others person crimes (i.e., aggravated battery or assault). In addition to the crime's classification, a criminal history score is assigned to a defendant, from A to I, with I being the least and A being bad news for a defendant (A-B, 2 person felonies on the defendant's record, will result in a prison presumption for all levels). The presumptions assign prison time should a person be presumed prison or violate probation and have to serve the underlying sentence, as well as whether a defendant must serve prison forthwith, or is presumed to be put on probation from the underlying sentence. See Kansas Sentencing Guidelines sentencing grid. See also drug sentencing grid.

Duncan presented the question of whether a Court can find that sufficient aggravating circumstances exist to justify putting someone in prison even though the presumption under the guidelines is probation. Kansas courts have already held that a judge cannot find sufficient aggravating circumstances to exist to warrant death. That is a question for a jury to decide. Additionally, several U.S. Supreme Court cases, the ones that led to the Kansas decision in Capital crimes, have already ruled that one's due process protections demand that increasing the severity of the punishment beyond the guidelines requires a jury, so Duncan really was inevitable.

In any event, the unequivocal rule of law in Kansas, thanks to Duncan, is now that a judge may not upwardly depart from the guideline presumption on his own, be that durational by increasing the time in prison, or dispositional by imposing prison on a probation presumption. A defendant has the right to have a jury find that sufficient aggravating circumstances exist to punish him more severely than the guidelines warrant. So, if you've been charged with a felony that falls within the presumption of probation, yet the facts are particularly heinous to make the reasonable person think you should go to prison, do not waive your right to a trial by jury by entering a guilty or no contest plea. Take it to trial and, at worse, get convicted, then leave it up to the State to ask the jury to depart upward. You are much better off taking your chances with 12 jurors than 1 judge.

If you love your family you will get a will NOW!!!

2010-11-18T18:11:00.000-06:00

I had another one of those nightmare scenarios occur this week. A potential client called me needing help probating his mother's estate. Sadly, it wasn't a simple matter of filing the necessary letters and documents with the court. There were other siblings, as well as a few cousins, all wanting a piece of the estate. There was also an estate of substantial value, a net of more than $500,000.00. Most important, there was no will.

I referred the man to another attorney who loves nightmare cases! Why a nightmare? Simple. The rest of the story is that this young man had held his mom's hand at her deathbed, and had taken care of her for the last two years of her life. No other siblings were there to take care of mom as she slowly died of Alzheimer disease. She verbally promised him to give him the house, the most valuable asset, in gratitude for his sacrifice. Without a will or joint tenancy in the deed, this can't happen. An "intestate" estate means there is no will and the assets must be split evenly between the siblings. The two years this man gave up to help his ailing mom will probably leave him bitter toward his siblings, and he is crazy if he thinks they will honor the verbal agreement with mom (no one else heard the promise).

The lesson is simple. Get a will and do it now. Do not take the chance that you will live long enough to make one.

Also, holographic wills are binding in Kansas. Such a will is handwritten by the testator. It must be 100% handwritten, dated, and signed by the testator's own signature. These are often contested and will need other documents to prove the validity of the handwriting (i.e., it must be proven to be written by the testator). However, it is a much better option to secure a professionally drafted will, power of attorneys, and living will with witnesses so the documents are self proving (i.e., nothing but the documents themselves are needed to be valid).

Finally, don't assume that the documents prepared by the attorney are accurate. Our policy is to mail drafts of all documents to the client in advance of coming into the office to sign in front of the witnesses. This ensures that more than one set of eyes reviews the documents. Sometimes this also results in changes in property disposition.

If you don't have a will already, especially if you have children, get one now. Don't wait until the unexpected happens. Don't leave your children with a nightmare scenario that could have easily been avoided.

Be vigilant defending your property rights

2010-11-13T10:37:00.001-06:00

This week the Kansas Court of Appeals issued an opinion that hammers home the importance of actively protecting your property rights with action and not just assuming that its enough to just buy your dream home and pick up the keys at closing. See Brownback v. Doe, et al., No. 102,355 (November 12, 2010).

The facts are simple. The suing party claimed that he and others had a property right in a strip of the respondent's land as a "prescriptive easement." He and others, it was claimed, had been using that portion of the land to access their properties.

This wasn't a case of a guy driving his truck across another's land without permission, or even excessive use of a nature trail. In fact, the petitioner introduced photos of what appeared to be a road dating back almost 100 years! He even called county workers to the stand who testified that they had done road maintenance on the property at issue.

To counter the above, the respondent called public officials to the stand who stated unequivocally that the "wagon roads" the petitioner was claiming were actual public easements were never considered legitimate roads and, at best, were temporary access points when the territory was being settled. There were also barbed wire fences posted "no trespassing" as well as other indications that the property owner never intended to grant other landowners a permanent easement. He was merely being a good neighbor by giving them permission to cross his land.

For this type of "public" easement in Kansas there must be continuous use of the easement for fifteen or more years, such use must be with the landowner's knowledge, implied or actual, and such use must be under color or claim of right and not merely with the owner's permission. There is a high burden on the party claiming the prescriptive easement to prove all elements by a preponderance of the evidence.

Review all those things the property owner did to keep out trespassers. Finally, consider the very wise words on the court. To paraphrase, mere use by the public of a road does not make it a prescriptive easement. There must be a clear intent by the governing authorities to adopt the road as its own. This didn't happen here. But let's be honest. Had the property owner not made it clear that he was merely giving others permission to cross (posting "no trespassing" signs while allowing the other party to access the property at issue to reach his own, putting up barbed wire fences, and personally asking the county to grade and repair "his" road) and not acknowledging that the other party actually had a legal claim or right to cross, the case would have turned out much differently.

In summation, if someone crosses your property, or even builds a fence a few inches on your side of the property line, stop them before they adversely possess it. Get witnesses to hear you say you are giving them permission to cross but that you reserve the right to take that permission away. Tear down their fence and put up your own. You get the idea. Fight for your rights. Don't lay down and assume there's nothing you can do to stop them.

A primer on search and seizure law in Kansas

2010-11-12T16:12:00.002-06:00

Today the Kansas Court of Appeals issued an opinion that doesn't break any new ground but does flesh out the law on vehicular searches and seizures a bit. See State v. White, No. 103,472 (November 12, 2010).

I'll save you time reading through a long recitation of the facts. It is sufficient to state that it was a vehicle stop and subsequent search of said vehicle for contraband. Two aspects of the case are useful for review.

One, "[t]here are four types of police-citizen encounters: (1) voluntary or consensual encounters, which are not considered a seizure; (2) investigatory detentions or Terry stops; (3) public safety stops; and (4) arrests. A traffic stop is considered a seizure of the driver and all passengers even though the purpose of the stop is limited and the resulting detention is brief." Ibid. at Syl.4.

Two, "[w]hen the original purpose of the traffic stop has been completed, further questioning is permissible only if (1) the encounter between the officer and the driver ceases to be a detention, but becomes consensual, and the driver voluntarily consents to additional questioning, or (2) during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity." Ibid. at Syl.5.

These holdings have represented the state of vehicular search and seizure law for quite some time. However, our very clever legislature tried to circumvent the Constitution by passing statutes that gave law enforcement expanded authority to engage in fishing expeditions. While the law allows searches for evidence of "the crime" suspected, Kansas law actually permitted searches for evidence of "a crime." Fortunately, the United States Supreme Court overturned that screwy wording in Arizona v. Gant. To drive the nail deeper into that unconstitutional law's proverbial coffin, White gave us an additional nugget of jurisprudential wisdom. It held that "consensual searches," the cure-all for otherwise impermissible and unconstitutional searches, are illegal and suppressible when they "are not related to the purpose of the stop." White, No. 103,472, Syl.7.

Up until this very moment, municipal and state prosecutors have continued to claim that consensual searches, i.e., "do you mind if we search your car?" will cure a search that is not based on sufficient probable cause. No more. Thank goodness the U.S. and Kansas Constitutions still have teeth.

The Kansas Constitution just got amended for no good reason

2010-11-03T10:50:00.000-05:00

Voters yesterday amended the Kansas Constitution. The first change was to Kansans gun rights. Actually, it was nothing but a political token. The U.S. Supreme Court in its D.C. and Chicago rulings already ruled that the Right to Keep and Bear Arms is an individual, fundamental right, which is what the Kansas amendment states. Hence, it is redundant and unnecessary, unless you are a politician who wants to score brownie points with voters who know no better.

The second is more sinister. It prohibits the legislature from curtailing the voting rights of mentally ill people. This scares me a little. Instead of adding a definition section to the offending, overbroad amendment, the provision bans disenfranchisement of any mentally ill person, regardless of severity of the handicap. It seems to me that this empowers groups like Acorn to vote on behalf of the mentally ill via absentee ballots. Can you say "Massive Voter Fraud"?

Wrongheaded laws that can be easily overturned or amended are one thing. Wrongheaded constitutional amendments that require legislative action and ballot initiatives are another. It seems to me that our lawmakers would have to pass a basic civics and IQ tests before they are allowed to run for office.

So much for the living, breathing Constitution, at least in Kansas

2010-10-29T12:03:00.001-05:00

An explanation of the title of this post is in order. It's been a couple of weeks since I updated this blog. Simply put, the cases I've been reading on the Friday Kansas Supreme and Appellate Courts' site are boring. Not much new to tell about, especially in the context of my practice areas. Strangely, this is actually a good thing. The law should not be some wishy washy, changing thing. It should be predictable, something you know will mean the same thing tomorrow and today as it did yesterday.

Which brings me to an observation I made this week. Unlike some lawyers out there (What do you call 100 dead lawyers on the ocean floor? A good start!) I don't take money just because it's offered. A couple of weeks ago someone asked me to represent them in a speeding ticket matter on Kellogg Drive in Wichita. The problem was that this just so happens to be a road in this city that the chief prosecutor dubbed a problem zone, lots of high speed drivers and accidents. Hence, you cannot amend tickets to non-moving violations. The only option is diversion, and you can't do that if you have a Commercial Drivers License (CDL). This gentleman had a CDL. I told him to not waste his money hiring an attorney. All that would be accomplished is a remittance of the fines, and he could do that without the $100-200 attorney fee. Save your money! Much to my surprise I got a message from him later asking about appealing the conviction.

He took that to trial? Really? Upon following up the message I discovered that he spent several hours in trial for the purpose of asking the judge to mercifully dismiss the case even though he admitted guilt. Back to my earlier point, shouldn't the law be predictable? Shouldn't average Joes like you and me expect to pay the price of violating the law regardless of our status or circumstances, unless, of course, there's a victim who's as much or more culpable than the defendant? What if we gave our judges the discretion to dismiss or convict based solely on their feelings.

"He's a pleasant fellow, not guilty!" or "This guy smells really bad, guilty!"

We don't not want to go down that road. There was a time when serious crimes carried varied sentences based more on how much of a pain in the butt one's attorney was. Then states and the feds got what are called "sentencing guidelines." Simply put, if a judge does something more or less harsh than the legislature approves, the sentence will be overturned. Personally, I like it when the men and women wearing black robes are hemmed in a corner (pun intended).

Consider Romans 13:1-7. I'll spare you a direct quote. To paraphrase, all authority comes from God, and the government wields the sword of justice to punish wrongdoers not those who obey the law. Obey the law, and know (or hope?) that if someone breaks the law his or her fate will be predictable and not at the whim of some nameless, faceless judge appointed for life.

Finally! The second amendment is applied to Kansas.

2010-10-08T10:57:00.001-05:00

Click on the above to see the Kansas opinion that forces Kansas to respect our 2nd Amendment Right to Keep and Bear Arms.

Don't hire a jerk to represent you

2010-10-08T10:52:00.000-05:00

Click on the title of this post and read the most bizarre disciplinary opinion I have ever seen. This attorney is a jerk. We're talking grade-A jackass. He uses profanity to demand action from clerks, attorneys, federal marshals, you name it. Simply put, this is the kind of person who give all attorneys a bad name. Not civil at all. Confrontation every moment in one's life is not a good way to love, and it will not help one's clients out when their cases are presented to the court.

Sometimes you just have to go to trial

2010-09-28T20:22:00.000-05:00

I ended a 2-day DUI jury trial today. Here's a brief summary of the facts. My client rear ended another car. Nothing serious just damage to the cars. The police arrived and believed my client was under the influence. They did FSTs which told them he was impaired. Really bad scores. So they arrested my client and took him downtown to do a breath test.

Before I continue, there are some other facts which might look bad but actually helped. They found a half full bottle of vodka in the back seat. My client said he had not consumed any of it. They also found a baggie of 20 prescription muscle relaxers/sleeping pills. Finally, at the scene my client told the officers that his dad's funeral was the following day.

My client blew .000 on the breath test, but admitted that he had taken 3 of the pills more than 4 hours before. He also refused the blood draw after failing another round of FSTs.

Additionally, I brought out inconsistencies in how the tests were done, including the DRE officer claiming that he believed the client was under the influence of drugs despite his inconsistent statement that the vitals were "within normal range."

Here's my main argument. My client was grieving the death of his dad yet showed unbelievable restraint in not imbibing in the vodka. He took the pills to relax and deal with his dad's death without getting drunk. Going into closing I didn't think it would work. It did and I and my client are thankful the jury didn't act like automatons like the prosecutor wanted it to do.

One final point. 6 months later my client's mom died too. Justice and mercy vied for dominance today. Mercy won. Thank God it did.

Odor of weed enough to search without warrant-click here

2010-09-17T15:21:00.005-05:00