The Right to Remain Silent – The Kansas DUI Breath Test Refusal Statute

Did you know that up until last Friday, February 29, 2016, Kansas had a law on the books making it a crime to refuse a breath test?  Not only will a breath test refusal lead to a suspended license, in Kansas until last week, it also constituted a separate criminal charge, per Kansas Statute 8-1025.  But last week the Kansas Supreme Court ruled that this law is unconstitutional, because it requires citizens to consent to what is tantamount to a warrantless search, or face the prospect of jail time simply for invoking the 4th Amendment right to demand that police produce a search warrant before intruding upon one's home or person.  The breath test refusal statute also forced citizens to give up their Fifth Amendment right to remain silent, because remaining "silent" when being asked to give a breath sample is, in and of itself, a violation of the law, and thus a resulting criminal offense.
 

Last Friday the Kansas Supreme Court struck down this law in four separate cases.  I wrote the first brief filed in the Supreme Court challenging this law as unconstitutional.  My client's case has yet to be officially ruled upon, but given the other four published decisions, a victory is imminent any day.  It's a welcome win for the Constitution!

If you have a family member or friend who is facing charges, or if you are a lawyer seeking assistance with an appeal or post-conviction matter, please call this office immediately.  There are always time deadlines limiting when these claims can be raised.  If you wish to learn more about the process, call now.

Jonathan Laurans wants you to be educated as to what you may be facing.  If you or a loved one has been convicted of a crime in Missouri, Kansas or Texas, or in any federal court, contact him immediately.  Visit his website at www.kansascitymoattorney.com and then call him at (816) 421-5200 for a FREE initial legal consultation.

Recurring Issues - Installment 3:

Lawyers often ask me, "What issues do you see trial attorneys missing the most during their trials?"  It seems that lately, I am evaluating several cases which contain many of the same issues repeatedly overlooked by defense counsel.  Last installment, we discussed the concept of “junk science."  Before that, I covered "hearsay" and missed objections to it.  In this installment, I offer commentary on yet another evidentiary issue arising in trials all over the country, leading to unfair convictions.

"Bolstering by prior consistent statements" - I am addressing this issue in more than one case right now.  The typical scenario involves a witness coming in to testify that the victim told the witness of an alleged act (for example, molestation by a family friend or relative) months prior to trial, with the resulting insinuation being, "This isn't a recent fabrication by Victim, because after all, Victim told this story to someone else previously."  Of course, the flaws in this logic are several, the most obvious being that a lie told repeatedly is still nevertheless a lie.  But it takes a skilled defense attorney to point this out to jurors.  In conjunction with my installment last month about "junk science," be wary of "family therapists" and "forensic interviewers" being used by prosecutors to bolster an alleged victim's story through craftily recounting the victim's "prior consistent statements."  A wolf in sheep's clothing is still a wolf.  And this one usually bites down with a jail sentence!

If you have a family member or friend fighting the battle against a wrongful conviction, or if you are a lawyer seeking assistance with an appeal or post-conviction matter, please call this office immediately.  There are always time deadlines limiting when these claims can be raised.  If you wish to learn more about the process, call now.

Jonathan Laurans wants you to be educated as to what you may be facing.  If you or a loved one has been convicted of a crime in Missouri, Kansas or Texas, or in any federal court, contact him immediately.  Visit his website at www.kansascitymoattorney.com and then call him at (816) 421-5200 for a FREE initial legal consultation.

Does the Law Really Change "All the Time?"

One of the platitudes associated with the legal profession is "The law changes of all of the time."  Does it?  Well, in slight ways, yes.  Here is why.  We get our law from three sources:  the legislature, the courts, and executive agencies (like the EPA or the IRS).  The legislature debates and then votes on "statutes" which are written rules that have the force and effect of "law."  These statutes proscribe against everything from usurious interest rates on loans, to crimes and their elements a prosecutor must prove to gain a conviction.  While "new" laws are not necessarily being passed by legislative bodies every day, tweaking of existing laws happens quite frequently, almost every legislative session.

Often the legislature delegates its rule-making authority to executive agencies, like the EPA or IRS, which then passes "rules" that accompany the legislature's statutes and further define terms and processes.  For example, the IRS tax code is a set of rules defining any number of concepts from "income" to "deductions," which all have the force and effect of law.

Meanwhile, our courts make law every day, when state and federal courts of appeal issue written decisions either affirming or reversing lower "trial court" rulings.  These published appellate court decisions are called "case precedents" and are the foundation of what is known as "common law."  Lawyers cite to these case precedents when arguing to judges at every level of the court system.  For example, a lawyer might lobby, "Your honor, the officer's search of my client's car was virtually indistinguishable from what the state police did in State v. Johnson decided by the Court of Appeals last year, wherein the Court disallowed use by the prosecutor of all evidence wrongfully taken from the suspect's vehicle because there was no legitimate basis for a traffic stop."

What this all means is that no matter how eloquent or smooth an attorney might appear, if that lawyer has not first "cracked the books" to update the research pertaining to your case, the lawyer is nothing more than a "paper tiger" and won't be able to prevail for you over the long course of litigation. Why?  Because law changes all of the time!  And this is the concept underlying appellate and post-conviction litigation.

If you have a family member or friend fighting the battle against a wrongful conviction, or if you are a lawyer seeking assistance with an appeal or post-conviction matter, please call this office immediately.  There are always time deadlines limiting when these claims can be raised.  If you wish to learn more about the process, call now.

Jonathan Laurans wants you to be educated as to what you may be facing.  If you or a loved one has been convicted of a crime in Missouri, Kansas or Texas, or in any federal court, contact him immediately.  Visit his website at www.kansascitymoattorney.com and then call him at (816) 421-5200 for a FREE initial legal consultation.

The Appeal and Post-Conviction Process. Finding a Lawyer:

An incalculable amount of stress and anxiety unfortunately befalls those whose family member, friend or loved one has been wrongfully convicted of a crime, or sentenced excessively.  The worst feeling of all is having to watch the world move on while the injustice just witnessed becomes yesterday's news.  "It's not supposed to happen here, in this country!"  (Sadly, it does every day.)  "Life just seems to move on for everyone else!  No one's listening!"  (No one believes this really happens, until it happens to their friends or family.)

Relief from the stress and anxiety can begin to take place once an experienced appellate/post-conviction attorney is retained.  On my YouTube page I've recorded several short videos to assist you in selecting the right attorney for your case.  Above all, you must "get in front of" at least 2-3 attorneys, so that there is a basis for comparison.  And keep the following in mind:  (1) An attorney who doesn't make time for you now, won't make time for you later. (2) When it comes to appeals and post-conviction litigation, "cheaper" is never ever a good thing.  These cases grind out for at least 1-3 years.  The small fee paid to an inexpensive lawyer will run out quickly, leaving him or her unmotivated to continue with the fighting spirit which is essential if a win is going to be procured.  (3) A lawyer who can explain the appellate/post-conviction process to you in easily-understood terms - rather than regale you with "war stories" - is your best bet.  If a lawyer can discuss these complex legal proceedings in plain terms, then that lawyer most likely has a mastery of this area of law.

No lawyer can guarantee that the injustice can be remedied.  Why?  Because every appeal and post-conviction motion is staunchly opposed by the government, and oftentimes the judiciary.  While some prosecutors will work with a defense attorney who brings them proof of an injustice, most will not.  But the right lawyer can give you and your family member or friend the best chance for success.

If you have a friend or family member fighting the battle for post-conviction relief, or if you are a lawyer trying to surmount the hurdle in the way of receiving a COA, please call this office immediately.  There are always time deadlines limiting when these claims can be raised.  If you wish to learn more about the process, call now.

Jonathan Laurans wants you to be educated as to what you may be facing.  If you or a loved one has been convicted of a crime in Missouri, Kansas or Texas, or in any federal court, contact him immediately.  Visit his website at www.kansascitymoattorney.com and then call him at (816) 421-5200 for a FREE initial legal consultation.

The Post-Conviction Process. Part Four - Federal "Certificates of Appealability":

In our last entry, we briefly touched upon what happens if the judge denies a post-conviction claim:  Another round of appeals if the case was filed in Missouri or Kansas state court.  But if the case instead was initiated in a federal district court, an application for a "certificate of appealability," or "COA," must be made. 

The application takes the form of a motion filed in the federal district court, followed by a brief filed in the U.S. Court of Appeals.  In the motion and the brief, the inmate or his lawyer must argue that there has been the denial of a federal constitutional right, and the issue is at least "debatable" between judges.  This is known as the "reasonable jurists test."  While this sounds like an easy threshold to cross - and it was designed by the U.S. Supreme Court to be a very slight and modest burden - federal appellate courts instead have turned the test on its head, making it, statistically speaking, the single hardest burden to satisfy in federal appellate practice.  For example, between April, 1996 and July 1, 2014, the Fourth Circuit Court of Appeals was presented with 7,541 "COA" applications, but granted only 22.  That is a rejection rate of a staggering 99.75%.  The other eleven federal circuits are no less welcoming of COA applications.

That said, the fight must continue to turn this injustice around, and force courts back to applying the "reasonable jurists" test properly.  (Last summer, I raised a challenge in the U.S. Supreme Court against the way that the federal appeals courts have been misapplying the "reasonable jurists test," and I will continue fighting this process until there is finally a breakthrough.)

If you have a friend or family member fighting the battle for post-conviction relief, or if you are a lawyer trying to surmount the hurdle in the way of receiving a COA, please call this office immediately.  There are always time deadlines limiting when these claims can be raised.  If you wish to learn more about the process, call now.

Jonathan Laurans wants you to be educated as to what you may be facing.  If you or a loved one has been convicted of a crime in Missouri, Kansas or Texas, or in any federal court, contact him immediately.  Visit his website at www.kansascitymoattorney.com and then call him at (816) 421-5200 for a FREE initial legal consultation.

The Post-Conviction Process. Part Three - Appeals:

In our last entry, we discussed the most frequently raised issue seen in post-conviction cases pending in Missouri, Kansas and in federal courts across the country (i.e., "29.15" motions in Missouri, "1507" motions in Kansas, and "2255" or "2254" motions in federal court).  The issue is "ineffective assistance of counsel," as most prominently recognized in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court case around which so much of post-conviction litigation revolves.

But what happens if the judge denies a post-conviction claim?  What happens next?  At the state level in Missouri and Kansas, another round of appeals - much like the "direct appeal" after trial - is permitted.  But at the federal level, there is no right to appeal the denial of a "2255" or a "2254" motion.  Instead, the litigant must ask both the judge and then the federal appellate court for a "certificate of appealability," which grants permission to appeal (and then, only the specific claims listed in the "certificate").

This is not as easy as it sounds.  In our next installment, I will offer some statistics which show how difficult our federal courts have made it, to obtain a "certificate of appealability," or "COA."

In the meantime, if you have a friend or family member fighting the battle for post-conviction relief, and feel you need assistance, please call this office immediately.  There are always time deadlines limiting when these claims can be raised.  If you wish to learn more about the process, call now.

Jonathan Laurans wants you to be educated as to what you may be facing.  If you or a loved one has been convicted of a crime in Missouri, Kansas or Texas, or in any federal court, contact him immediately.  Visit his website at www.kansascitymoattorney.com and then call him at (816) 421-5200 for a FREE initial legal consultation.

The State Post-Conviction Process. Part Two - What Issues are Raised:

In our last entry we examined the general parameters of the State post-conviction process.  In this entry, we will summarize what issues post-conviction lawyers look to raise most when crafting "29.15" motions in Missouri and "1507" motions in Kansas.

Most post-conviction attorneys are combing the files and transcripts of a case to ferret out "ineffective assistance of counsel" claims.  These are allegations lodged by the convicted client who contends that his or her trial (or guilty-plea) counsel made poor decisions and other errors during their involvement in the case.

The most famous precedent establishing this standard for evaluating "whether trial counsel was competent" is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  The Strickland case sets forth a two-part test:  (1) Did counsel perform deficiently, i.e., make errors other lawyers in the community would not have made?  (2) Did those errors affect the outcome of the trial or the sentence?  Both parts of the test must be satisfied in order for an inmate to be entitled to post-conviction relief.

The fact that a defendant followed his attorney’s advice to plead guilty does not circumvent or negate the Strickland test.  If counsel's mis-advice was so poor as to render the guilty plea "unknowing or involuntary," then relief can also be granted.

Defense counsel’s strategic decisions are usually accorded great deference, but only if they are made after a thorough investigation.  The failure to pursue even a single piece of important evidence, however, may demonstrate ineffectiveness and prejudice sufficient to warrant a new trial. 

Just how the Strickland test may apply to your case, or that of a loved one, is a complex analysis.  Do not hesitate.  There are time deadlines limiting when these claims can

be raised.  If you wish to learn more about the process now, please call this office immediately.

Jonathan Laurans wants you to be educated as to what you may be facing.  If you or a loved one has been convicted of a crime in Missouri, Kansas or Texas, or in any federal court, contact him immediately.  Visit his website at www.kansascitymoattorney.com and then call him at (816) 421-5200 for a FREE initial legal consultation.

A DUI/ DWI Charge Actually Initiates Two Separate Cases Against the Driver, Often Taking Place in Separate Courts in the Kansas City Area. Part Two - The Administrative Case.

It is important to understand the administrative case potentially facing you.

Earlier we discussed the criminal case as it pertains to driving under the influence of alcohol or drugs in the Kansas City area.  It is important to remember that whatever you think you know about DUI/DWI, a veteran Kansas City criminal attorney knows more.

Let us now address the administrative case.  This is where the State division of motor vehicles attempts to suspend your driving privileges, i.e., take away your license for a specified period of time.  It is often referred to as your "admin. hearing" by most lawyers.  In that hearing, there is a fight over whether the officer who stopped your vehicle made all appropriate determinations leading to evidence indicating you were driving while under the influence of drugs or alcohol.  While many lawyers focus on the "legality" of the officer's decision to pull your car over, the determination in these proceedings is instead whether observations and evidence support a conclusion of a drunken or altered state while operating the car.  In other words, the focus is on the driver's condition, not on the driver's driving performance.  Like with the criminal side of your DUI charge, the administrative penalties (the duration of a driving suspension) vary according to your prior record, i.e., driving history.

Jonathan Laurans wants you to be educated as to what you may be facing.  If you or a loved one has been accused of a DUI or DWI in the greater Kansas City area do not hesitate.  Visit his website at www.kansascitymoattorney.com and then pick up the phone and give him a call (816) 421-5200 for a FREE initial legal consultation.

A DUI/ DWI Charge Actually Initiates Two Separate Cases Against the Driver, Often Taking Place in Separate Courts in the Kansas City Area. Part One - The Criminal Case:

First, there is the criminal case. Since driving under the influence of alcohol or drugs is a violation of state statute and/or city ordinance, either the county or city can arrest a suspected driver and issue a ticket or summons requiring the driver to appear in court and face charges. 

The criminal penalties for DUI/ DWI are mostly dependent upon the driver’s history of alcohol-related infractions. Whether a driver should plead guilty with the assistance of an attorney negotiating a “plea bargain,” or instead challenge the charge at a trial, is dependent upon the evidence and the validity of the arresting officer’s initiation of the traffic stop and collection of information and evidence from the driver. 

Only a skilled Kansas City area trial lawyer – one who not only knows all of the various defenses available to a driver, but who has also employed them in a courtroom, should be advising and handling your DUI/ DWI case.  Look for a criminal defense lawyer who promises to not only investigate your charges, but who also discusses with you the legal research that must be conducted in order to properly strategize your defense.

Analysis of your case and potential defenses ought to be done in person.  Never should you try to glean plans for your own specific case off of a website.  So meet with an experienced criminal defense attorney immediately!

In the Kansas City area that man is Jonathan Laurans at www.kansascitymoattorney.com.  Call him today for aggressive DUI/DWI representation at (816) 421-5200.  Your situation is too important to trust to just any attorney.

Stay tuned for the next installment of "Part Two - The Administrative License Suspension Case".