The Kansas statute dealing with Driving Under the Influence testing procedures can mostly be found in KSA 8-1001. Other states likely have very similar statutes. Today’s post deals with an issue I see more and more in my experience as a DUI/DWI defense attorney. I have also seen it in my prosecution experience.
KSA 8-1001 (i) deals with collecting a urine sample for testing. Most of the time, breath or blood is all that is requested. Some jurisdictions, however, collect urine to be tested for drugs on a DUI or DWI case. This section of 8-1001 describes what types of personnel can collect a urine sample and I wanted to pay particular attention to the last personnel type, the law enforcement officer. If a law enforcement officer is the person collecting the urine sample, the statute is clear that it must be from an officer or the same sex. I have seen a few cases where a female law enforcement officer was not on duty at the time of arrest and the sample was collected by a male.
The policy behind this relates to privacy. The legislature seems to want to discourage a chance at civil litigation from a person claiming a harm from a member of the opposite sex observing the collection of such a sample.
For the defense, this is a small, but critical issue. If a sample is not collected properly, the entire testing results might be excluded. In working on these cases, make sure you read your collection statute as you read the collection procedure in your report.
For the prosecution, it seems like quite the hardship to have the results of good testing thrown out due to this error in a collection procedure, but it is nothing a bit of training or education with your local officers cannot fix. I believe that if this is collected improperly, the defense would have a solid argument to have the test excluded.
Have you dealt with this issue or heard of any litigation? Contact me with your insights. Until next time, drive safe!