By Roger McKinney

rmckinney@joplinglobe.com

COLUMBUS, Kan. — Several drunken-driving cases are being thrown out in Cherokee County because a judge concluded the Sheriff’s Department illegally detained some of those who had been stopped. Other cases are being dismissed because the Sheriff’s Department for several months last year used equipment that was not certified to measure blood-alcohol content, according to the county attorney’s office.

The Sheriff’s Department has now changed its policy, said Cherokee County Attorney John Bullard. The department also is now using equipment that will stand up in court.

Recent cases

Cherokee County Magistrate Judge Bill Lyerla on Feb. 28 dismissed a felony DUI charge against Michael Aldrighetti, 44, of Columbus, ruling that the Cherokee County Sheriff’s Department had detained him illegally.

Aldrighetti’s lawyer, Sam Marsh, wrote in a motion to dismiss that the Sheriff’s Department had violated his client’s rights because he was arrested at 6:41 p.m. on March 2, 2007, and was released at 8:42 a.m. on March 3. Marsh wrote that his client was prevented from bonding out of jail before then because of the Sheriff’s Department policy.

The felony charge against Aldrighetti alleged that he committed the crime after two previous convictions.

A felony DUI charge against Lucas Hatcher, 27, of Columbus, also was dismissed recently for the same reasons, Bullard said. Hatcher was found guilty of misdemeanor traffic charges and sentenced to probation. He also was charged with committing the crime after two previous convictions.

“There are several dismissals that will be filed in the near future and in the next few months,” Bullard wrote in an e-mail explaining the situation in the Hatcher case. “We have been going through the pending DUIs and checking with the jail to see how many were detained. I don’t know the total number yet, but it’s more than a handful.”

Yet another dismissed case is that of Becky Allgood, of Commerce, Okla. She had been charged with felony DUl also after two previous convictions. The incident from which the charge resulted happened on Sept. 9, 2007, in Baxter Springs. She was found guilty of misdemeanors and traffic infractions, ordered to pay a fine and sentenced to a year’s probation. Judge Lyerla dismissed the DUI charge on March 4, citing a 2001 Kansas Supreme Court ruling.

That case struck down the automatic, mandatory detention periods for DUI arrests. The ruling found that mandatory detention policies violate the state constitution’s requirement that defendants be allowed to see a judge and make bail “without unnecessary delay.”

The ruling states that there are varying degrees of “under the influence” and being under the influence is not necessarily the same as being intoxicated. It also states that a judge can take public safety into account when setting conditions for release. Public safety is not an issue when someone who is arrested is released into the custody of a responsible person, it reads.

No blanket policies

The Supreme Court ruling allows officers to continue to make individual determinations about detention based on personal observations, but there can be no blanket policy.

“The detention of a person arrested for DUI is permissible if an officer determines, based upon his or her personal observations, that the arrestee is intoxicated and a danger to himself or others,” according to the ruling.

It also states that dismissal of the charges is an appropriate remedy.

Bullard said in a phone interview that a defense attorney cited the Supreme Court ruling in court and it grew from there.

“That’s how it came to everyone’s attention,” Bullard said. “It went like wildfire among the attorneys.”

Bullard said the Sheriff’s Department has since eliminated the automatic, mandatory detention periods. He also said the Sheriff’s Department and other police agencies were notified of the Supreme Court case several years ago, probably around the time of the ruling. He said he was unsure how it came to be disregarded in subsequent years.

The Supreme Court ruling came during a previous sheriff’s administration and a previous county attorney’s administration.

Sheriff Steve Norman, who was elected in 2004, did not return calls seeking comment, but Undersheriff Kent Soucy said the department was detaining people arrested for driving under the influence of alcohol for six hours because that’s what they were instructed to do by the former county attorney, Michael Goodrich.

“Goodrich felt that he could argue the case at a higher level,” Soucy wrote in an e-mail response to the Globe.

Goodrich resigned after being indicted on federal charges of felony extortion, wire fraud and witness intimidation. He is awaiting trial. He could not be reached for comment.

Max Southerland, Kansas victims’ service specialist with Mothers Against Drunk Driving, said the Supreme Court ruling seemed reasonable to him.

“I can understand the concerns of the court on due process,” Southerland said.

He also said he was not previously aware of the ruling and knows of no other jurisdiction where it has become an issue. He said constant education is important.

“Somehow, there ought to be a good system to get information out to these (police) agencies,” Southerland said. “I think it’s a matter where we need to keep updating law enforcement on these changes.”

The situation apparently is not an issue in Missouri or Oklahoma.

Jasper County (Mo.) Prosecutor Dean Dankelson said people arrested in Missouri can be detained for up to 24 hours for any crime.

“Hopefully, within that 24 hours they’ll be able to see a judge and be bonded out,” Dankelson said.

Eddie Wyant, district attorney for Ottawa and Delaware counties in Oklahoma, said Oklahoma law doesn’t address mandatory detention periods for DUI arrests. He said he thinks most police agencies in Oklahoma have them.

“If a person is drunk, you’re going to keep them in jail,” Wyant said. “You can’t put them in public if they’re intoxicated.”

Ottawa County Sheriff Terry Durborow said his department’s practice is to jail anyone arrested for driving under the influence of alcohol for a minimum of six hours. He said the only exception is if a judge tells him otherwise.

Uncertified

Some other DUI cases are being dismissed because the Sheriff’s Department from July to September 2007 was using a breath-alcohol testing device that was not certified by the state, said assistant Cherokee County Attorney Candace Gayoso.

“It did result in a few dismissals, not a lot,” Gayoso said.

She said the Sheriff’s Department found out in July that its device for measuring alcohol content in a suspect’s breath had lost its certification from the Kansas Department of Health and Environment. The Sheriff’s Department was notified by the state agency and the agency lent the Sheriff’s Department a device that was certified.

Gayoso said there was a misunderstanding at the Sheriff’s Department and the custodian of the breath device placed the certified loaner in storage, while the Sheriff’s Department continued to use the uncertified device until September, when someone realized the mistake. She said the loaner was discovered in a closet.

Norman did not return phone calls about the testing device, either. Undersheriff Soucy, responding by e-mail, gave an explanation that differed from Gayoso’s account.

“The Intoxilizer 5000 was down for a short period of time, but it has been working fine,” Soucy wrote. “It is being replaced this month by the new Intoxilizer 8000.”

Soucy wrote that the Intoxilizer 5000 was not working and because the state was preparing to furnish all departments with the new device, the state chose not to have the department’s old device repaired. Soucy wrote that the state sent the loaner until the new device arrived and that the officer in charge of sending the monthly certifications to the state was mistakenly using the serial number for the old, malfunctioning device.

“The loaner unit was set up and being used from the moment we received it,” Soucy wrote.

Gayoso said not all cases where the uncertified device was used will be dismissed. She said if the breath test was paired with a field sobriety test, prosecution would proceed. She said cases are being dismissed where the defendant refused a field sobriety test and there was no evidence other than the breath test.

Defense attorneys

Gene Barrett, a criminal defense attorney in Baxter Springs, said police agencies have a responsibility to be aware of the Supreme Court ruling.

“If it’s a Supreme Court ruling, it’s the law,” Barrett said. “It doesn’t matter if you’re aware of it or not. If that’s the law, you should be aware of it.”

He said he was pleased that the Sheriff’s Department had changed its policy.

Eddie Battitori said he was the first to use the Supreme Court ruling in defense of a client in Cherokee County.

“People can bond out on a murder charge quicker than they can bond out on a DUI” under the previous policy, Battitori said. He said the Sheriff’s Department technically was put on notice when the ruling was published.

“Ignorance of the law is no excuse,” he said.

Barrett said the detention represented punishment before a conviction. He said it doesn’t make sense to hand car keys to someone who obviously is intoxicated, but if someone is no longer drunk and doesn’t represent a public danger, there is no reason to detain him. He said that also is true if someone who is intoxicated can be released to the custody of a responsible person.

Battitori said a dismissal of the DUI charge doesn’t necessarily mean that the defendant won’t feel repercussions. He said the status of a defendant’s driver’s license can be affected regardless of a DUI conviction.

Barrett and Marsh said people sometimes misunderstand the role of defense attorneys.

“Defense attorneys probably do more to protect the freedoms of everybody than your government does,” Barrett said. “When you go into court, you’re not there just to protect the guy sitting next to you. You’re holding the government accountable to protect the law and the constitution.”

Marsh said a defendant may get a free pass one time under the situation.

“Nobody in good conscience ought to be drinking and driving,” Marsh said. “We’re all just trying to be diligent in fighting these things. We’re protecting our clients’ rights and everybody else’s rights in the process.”



Past convictions?

Cherokee County Attorney John Bullard wrote in an e-mail to the Globe that he thinks dismissals of driving under the influence of alcohol charges will apply just to pending cases, but there may be challenges of past convictions.