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Kansas DUI Law Ruled Unconstitutional

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By Christopher Coble, Esq. on March 01, 2016 2:58 PM

The Kansas Supreme Court has overturned a law making it a criminal offense to refuse a blood alcohol test during a DUI investigation. The law had made it either a misdemeanor or a felony to refuse to submit to warrantless breath or blood tests.

Many states have penalties for refusing sobriety tests, but the court in this case determined that criminal convictions based on refusals violate drivers' Fourth Amendment protections against unreasonable searches and seizures.

No Warrant, No Search

The key part of the Kansas Supreme Court ruling is that the tests requested were not the result of court-ordered warrants. Absent a warrant, prosecutors could not charge a person with a crime because he or she refused to submit to an alcohol test. If law enforcement does have a warrant, criminal penalties can be imposed for lack of cooperation. Therefore the ruling will likely be limited to roadside and field sobriety tests.

And the ruling may not last long. Last year, the U.S. Supreme Court announced it would hear arguments in three cases regarding whether states can criminalize a driver's refusal to take an alcohol test. Kansas wasn't the only state to make refusing blood alcohol tests a crime, and whether those other laws will stand remains to be seen.

No Consent, No Search

You may have heard of implied consent laws, which allow states to revoke a person's driver's license if they refuse a breath or blood test. Under those statutes, drivers are presumed to have consented to chemical tests during DUI investigations as a condition of obtaining a license. But the Kansas Supreme Court found that drivers have a right to rescind that consent, and they can't be charged with a new criminal offense for exercising that right: "Once a suspect withdraws consent, whether it be express consent or implied (under the statute), a search based on that consent cannot proceed."

So while you might still be arrested or otherwise penalized for refusing an alcohol test, at in Kansas and at least for now, that refusal can be a crime in and of itself. If you've been charged with a crime for refusing a blood or breath test, or with any other drunk driving offense, you should contact an experienced criminal defense attorney as soon as possible.

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