Top Kansas Court Rules Refusing an Alcohol Test Not a Crime for DUI Suspects

By May Wilkerson 03/01/16

In a 6-1 ruling, the Kansas Supreme Court has deemed it unconstitutional to criminalize a driver's refusal to undergo breath or blood tests.

Kansas Court Rules Refusing an Alcohol Test Not a Crime for DUI Suspects
Photo via Shutterstock/Barone Firenze

In Kansas, drivers who refuse to take a blood or breath test during DUI investigations cannot be criminally prosecuted, the state’s Supreme Court ruled last week. Until now, Kansas state law made it a crime for DUI suspects to refuse an alcohol test. But in a 6-1 ruling on Friday, the court determined this law to be unconstitutional. 

Under current state law, anyone who gets behind the wheel of a car is giving their implied consent to take a test for blood alcohol content. But the court ruled that implied consent may be withdrawn, and this withdrawal cannot be punished as a crime. “Once a suspect withdraws consent, whether it be express consent or implied (under the statute), a search based on that consent cannot proceed,” said the court. Instead, refusing a blood or breath test will be classified as a misdemeanor, or a felony after repeat offenses. 

Johnson County District Attorney, Steve Howe, argued that the ruling could affect road safety by making it more difficult to crack down on repeat DUI offenders. The U.S. Supreme Court is currently considering cases from other states on the same issue. “I’m confident the U.S. Supreme Court will find it lawful,” said Howe. “It’s a big public safety issue.”

But others see the court ruling as a win for constitutional freedom. Jay Norton, an Olathe criminal defense lawyer and expert on DUI law, called the day of the ruling “a great day” for the state and U.S. Constitution. He said the law that made refusal of BAC testing a crime has been used “as a hammer” to coerce people into pleading guilty to a DUI, in order to avoid the additional crime of refusing a test. “The Supreme Court has affirmed the right of the individual citizen to be free from forced searches by the government,” said Norton.

The ruling is a disappointment for anti-drunk driving advocates. Christopher Mann, a member of the national board of directors for Mothers Against Drunk Driving, said 20% of arrested drunk drivers refuse to take blood or breath tests when pulled over. “Obviously MADD’s position is that driving is a privilege and not a right,” he said. “We support penalties for refusing to take chemical tests. We think law enforcement members need to have all the tools at their disposal to keep our roads safe from drunken drivers who kill about 10,000 people a year.”

The U.S. Supreme Court announced in December that it will decide whether states can make it a crime to refuse to take an alcohol test. They ruled in 2013 that police usually must try to obtain a search warrant before ordering an alcohol test for DUI suspects, and that exceptions should be decided on a case-by-case basis.

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May Wilkerson is a writer, comic and Managing Editor @someecards. Co-host of the podcast Crazy; In Bed w/alyssalimp. She is also the top Google result for "insufferable lunatic." Follow this insufferable lunatic on Twitter.

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