Charges Filed in DUI Case
01/04/2013
Douglas County District Attorney Charles Branson announces charges were filed today in Douglas County District Court against Lawrence resident Julian M. Kuszmaul, 22. Mr. Kuszmaul will face the charges of Driving Under the Influence (Second Offense), Unlawful Possession of a Controlled Substance and Following Another Vehicle too Closely at his First Appearance at 3:00 p.m., on February 12. The charges follow the August 26 accident involving Derby resident Colby Liston. The D.A.'s office received calls and emails regarding why more serious charges were not filed against Mr. Kuszmaul, however, Kansas Supreme Court case law specifically states that "[a]dditional evidence, beyond evidence that an accused was driving under the influence of alcohol, is necessary to create probable cause for reckless aggravated battery charges. Simply driving under the influence of alcohol does not, standing alone, amount to reckless behavior." State v. Huser, 265 Kan. 228.* Unfortunately, the crime of vehicular battery (K.S.A. 21-3405b) was repealed by the legislature in 1993. In this case, there is no evidence of additional reckless behavior that would satisfy the Supreme Court's definition. The Douglas County D.A.'s Office disagrees with the Supreme Court's interpretation; however, it is bound to follow it. The office along with the Kansas County and District Attorney's Association (KCDAA) is seeking legislation this year to correct this injustice. KCDAA is seeking an amendment to the aggravated battery statute adding a definition of reckless aggravated battery as any battery that occurs while someone is operating a vehicle under the influence. This would be a felony crime. The office encourages those interested to contact their legislators and ask that they support such an amendment. Ironically, under the Kansas Sentencing Guidelines, reckless aggravated battery is a presumptive probation offense. The current charges against Mr. Kuszmaul can result in a jail sentence up to one year. The Douglas County D.A.'s office has a long history of being proactive against drunk driving. It has successfully sought changes in the law regarding criminalization of breath test refusals, strengthening penalties for drivers that leave the scene of an accident while under the influence and the use of search warrants for blood draws when drivers refuse breath tests. The Douglas County D.A.'s office will continue to work to hold accountable those responsible for alcohol related crimes and will continue to lobby for criminal statutes that protect our community. *The Kansas Supreme Court went on to say "When the legislature repealed the vehicular battery statute in 1993, it knew that reckless driving did not equate to DUI because the Mourning case had been decided in 1983. Thus, the legislature knew that if it repealed a criminal statute which punished a defendant who caused bodily injury to a victim while driving under the influence of alcohol, this criminal act would not be covered by a statute which punishes recklessness without independent evidence that the drunk driver also drove recklessly." Huser at 236. -30-
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Media Contact:
Cheryl L. Wright
District Attorney's Office
785-841-0211
cwright@douglas-county.com