Court Sentences Defendant that Crushed Pedestrian's Legs

District Attorney Charles Branson advised that yesterday District Court Judge Kay Huff sentenced Julian Kuszmaul, 24, in the August 26, 2012 case where Mr. Kuszmaul while driving under the influence caused a car crash that crushed the legs of victim Colby Liston. After Mr. Kuszmaul waived his right to a jury trial, a bench trial was held on December 10, 2014; Judge Huff announced the trial verdict on December 18.  The Court found Mr. Kuszmaul guilty of possession of marijuana, driving under the influence (second) and refusal to submit to testing.  The Court found him not guilty of following too closely, a traffic infraction.

The Court sentenced Mr. Kuszmaul to 12 months in jail for possession of marijuana, 12 months in jail (to run consecutive to the possession charge) for driving under the influence/second and 12 months in jail (to run concurrent to the DUI charge) for refusal to submit to testing.  He was fined $2,500.00 and ordered to pay a $400 Kansas Bureau of Investigation lab fee.

Mr. Liston ultimately had to have his legs amputated because of injuries incurred from the crash.  Mr. Kuszmaul was questioned at the scene of the accident due to the strong odor of alcohol and marijuana coming from him while he spoke to officers.  Mr. Kuszmaul was not given field sobriety tests, but was transported directly to Lawrence Memorial Hospital for a blood draw.  Mr. Kuszmaul refused to submit to a voluntary blood test.  Law enforcement directed medical personnel to complete a blood draw without Mr. Kuszmaul’s consent pursuant to Kansas statute that took effect in 1995 allowing warrantless blood draws in the case of a serious injury accident.

After the blood draw and while the charges were pending against Mr. Kuszmaul, the U.S. Supreme Court ruled in a Missouri case that such blood draws may violate a defendant’s fourth amendment rights.  Mr. Kuszmaul’s attorney filed a motion to suppress the results of the blood draw, which indicated the defendant had a blood alcohol content of 0.25, over three times the legal limit of .08 in Kansas.  The District Court suppressed the warrantless blood draw results, and the state took an interlocutory appeal challenging the suppression of the evidence.  The Court of Appeals ruled the state’s interlocutory appeal was not allowed because the state could still try the case even after loss of its key evidence. 

At the time Mr. Kuszmaul’s case was charged the Douglas County District Attorney’s Office faced a degree of criticism over the charging decision.  The District Attorney’s

Office wanted to pursue a stronger charge, but at that time Kansas Supreme Court case law specifically stated, “[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. 

After identification of this critical gap in Kansas statues that failed to provide sufficient protection for victims of this type of crime, work was started to correct the injustice.  The Douglas County District Attorney’s Office along with the Kansas County and District Attorney’s Association (KCDAA) immediately sought legislation in 2013 to toughen the law.  A bill was introduced to expand the definition of aggravated battery to include bodily injuries suffered from a drunk driver.  District Attorney Branson testified before both the House and the Senate committees in support of the bill and it ultimately passed unanimously by both houses of the Kansas Legislature and was signed into law by the Governor.  The new law went into effect July 1, 2013, but it could not be retroactively applied to Mr. Kuszmaul’s case.