DO NOT GET TOO SPECIFIC WHEN ISSUING DUI CITATIONS
 

    A recent Municipal Court ruling by Judge Joseph Cox illustrates the problems created by too much specificity when issuing DUI citations. Both K.S.A. 1997 Supp. 8-1567(a) and STO 30 set forth five alternative ways to prove a DUI charge. Subsections (a) (1) through (3) are the most common forms of the offense. These charges can be pleaded in the alternative. K.S.A. 1997 Supp. 8-1567(o), STO 30(o). In Municipal Court, the officer does the charging and, unless the prosecutor is on his or her toes, a minor point can lead to a ruined case.

    In City v. Christopher Whitehead, Case No. 9512287, the defendant failed a breath test by blowing a 0.104. The citation charged "STO 30(a)(1) DUI Alcohol .104: and "STO 147(c) tag light required." The case was "tried" to the court on the stipulated facts contained in the police report, which showed the stop occurred at 1:54 a.m. on August 7, 1995, and the breath test was completed at 2:48 a.m. Judge Cox held that because the City charged the defendant with driving while having an alcohol concentration exceeding 0.080 under STO 30(a)(1), the City must prove what the alcohol concentration was at the time the defendant was driving. In the absence of such evidence, he found the defendant not guilty of DUI, but convicted him of the tag light charge.

    Although the result is based on a tortured construction of STO 30(a)(1), there is no controlling case law in this state assuring that the ruling would be reversed on appeal. In hindsight, the prosecutor should have amended the charge to 30(a)(2) or 30(a)(1) through (3) before submitting the case to Court. Another alternative was to offer expert testimony extrapolating the breath test result back to the time of driving. The first option, amending the charge, is easy. The second much more difficult. Considering the quantity of DUI cases prosecuted in Municipal Court, the prosecutor will not always catch these irregularities.

    The easiest way to correct this problem is for officers who issue DUI citations to simply charge "STO 30(a) DUI." If the defendant requests more specificity, prosecutors may then amend the charge to fit the factual circumstances of the crime or plead the case in the alternative as allowed by law. Such an approach complies with due process and was specifically endorsed by the Kansas Court of Appeals in State v. Boyle, 21 Kan. App. 2d 944, 913 P.2d 617 (1996).

BY ORDER OF

CHIEF OF POLICE