Kansas DUI KSA 8-1013(f)(1)

[mygard]

Kansas.
Don't they have to prove when you were driving?

And statute says......(1)....two hours or more after operating.....; AND (2) readings obtained from partial....

It does not "and,or" I contend that if the legislature intended to mean one or the other they would have used "and, or". As it reads to me both subsections need to be met.

I saw an appeal for something once where KS Appellate Court found that you had to go with actual wording and you could not "asume an implied meaning....If the legislature means to imply one or the other, they would have included the word OR..." i.e., "and or" between subsections 1 & 2.

Any thoughts.... Please & Thank You

 

[FlyingRon]

Sorry, you are wrong.
This is what happens when you don't put in the entire sentence from the statute and screw up therefore interpretting the fragment.

"Other competent evidence" includes (1) Alcohol concentration tests obtained from samples taken two hours or more after the operation or attempted operation of a vehicle; and (2) readings obtained from a partial alcohol concentration test on a breath testing machine.
​

The "includes" indicates that the following list is a set of the "other competent evidence." Each thing that follows is an instance of other competent evidence

 

[mygard]

Okay.... What about the time factor.????

"Two hours or more...." Don't they have to prove what time you were driving.????
How can they say you had alcohol in your system when you were driving; If you did, how much; How much time had expired between driving & blood test; And your actions between driving & test..... If they can not prove the time you were driving....????
That seems to leave alot of doors open**************....

(please & thank you)

 

[FlyingRon]

Well close. They don't have to fix a time of driving, only that it was at least two hours ago.

i.e., they have to show you were driving or attempting to drive
*AND*
that the subsequent test happened at least 2 hours later. If you were in custody for two hours, for example, that would be good.

This is all just used to support a presumption of intoxication in 8-1005 when your initial test didn't hit about the per se limit of 0.08.

Now a competent lawyer will argue whether in light of the initial test and the "other evidence" whether you were in fact intoxicated at the time you were driving.

 

[mygard]

They have no idea how long it was between driving and blood test. First officer I saw was when blood was drawn.

 

[FlyingRon]

Well, then that can be challenged as the other supporting evidence. The whole non-per se case is open for a lot of wrangling. Your lawyer will address this.

 

[mygard]

Court appointed... 3rd one over last 3 1/2 yrs.
Not much faith in them so doing as much as I can. Don't think either the first two argued well. Neither followed my requests....
Maybe I need to go sleep at a Holiday Inn Express... Law research is tough!


ps... Thanks for talking to me and not being condescending.!!!!