Kansas Supreme Court: Law on sobriety tests unconstitutional
Topeka ? Drivers in Kansas who are suspected of being intoxicated can no longer be punished for refusing to take a blood alcohol test, and police may no longer warn drivers that such refusals can result in stiffer criminal penalties, the Kansas Supreme Court said Friday.
In three related cases, the justices ruled 6-1 that breathalyzers and other forms of blood-alcohol tests constitute “searches” and thus are subject to the Fourth Amendment’s prohibition against unreasonable searches and seizures.
And in a fourth case, the court said police may no longer warn drivers that refusing to submit to a test can result in even stiffer penalties because such a warning is both inaccurate, in light of the other three cases, and constitutes a form of coercion.
The court said the law compelling people to submit to such a search without police first obtaining a warrant is “impermissibly broad because it allows the State to criminally punish those who refuse a search that is not grounded in the Fourth Amendment.”
Under Kansas law, it has long been held that drivers have given implied consent to DUI tests merely by driving on public roads. But the court said both the U.S. Constitution and the Kansas Constitution allow drivers to withdraw that consent, and the state cannot criminally punish an individual for making that constitutionally protected choice.
Under the law, enacted in 2012, refusal to submit to a blood alcohol test is a misdemeanor, carrying a sentence of up to six months in jail and a fine of up to $1,000 for the first offense. In addition, it can result in a one-year suspension of driving privileges on the first offense; a two-year suspension on the second offense; and a three-year suspension on the third offense.
Those are in addition to any penalties that may result from the DUI conviction itself. A first DUI conviction in Kansas carries a mandatory sentence of at least 48 hours in jail or 100 hours of community service; a fine of $500 to $1,000; and mandatory completion of a drug and alcohol education or treatment program.
A second DUI conviction results in 90 days in jail and a fine of $1,000 to $1,500; and a one-year suspension of driving privileges, followed by another year of restrictions that only allow the driver to operate a vehicle with an ignition interlock device.
Third and subsequent convictions are considered felonies that carry even longer jail time, fines, loss of driving privileges and possible impoundment of the driver’s vehicle.
The Kansas Department of Revenue was not immediately able to provide figures Friday on the number of people whose licenses are currently under suspension for refusing to submit to a blood-alcohol test.
Attorney General Derek Schmidt’s office announced Friday afternoon that it had already issued revised consent forms and advisories for law enforcement officials to use in suspected DUI cases to comply with the court’s decision.
“We are taking swift action today to ensure Kansas law enforcement immediately has available legally correct forms to comply with the law while continuing to keep our state’s streets and highways safe,” Schmidt said. “We are making the modified forms available immediately so DUI enforcement can continue uninterrupted.”
Douglas County District Attorney Charles Branson said Friday’s ruling could result in voiding any convictions and license suspensions handed down in the past for people who refused to submit to a test.
But going forward, he said he doesn’t think the ruling will have a major impact locally because officers in Lawrence and Douglas County routinely obtain warrants to have blood tests taken whenever a driver refuses to take a preliminary blood test.
“If they refuse to submit to a breath or blood test, then the officer has the option of applying for a search warrant of that person’s blood,” Branson said. “We started doing that a number of years ago. We have essentially a quick form that allows the officer fairly quickly to fill in the form with their observations, what they’ve done and the request for a blood draw, email that off to a judge for a judge’s review and signature, and then it comes back and they take the person to Lawrence Memorial Hospital for a blood draw.”
As a result, Branson said his office has prosecuted very few cases for refusal to submit to a test because his office is able to obtain proof that someone was driving under the influence even if they refuse to submit to a test.
Lt. Adam Winters, spokesman for the Kansas Highway Patrol, said officials are reviewing the court’s decisions to determine how it will affect procedures in DUI cases. He said the standard practice has been to place anyone who refuses to submit to a test under arrest for suspicion of driving under the influence and then refer the person’s refusal to the Revenue Department’s Division of Vehicles for an administrative hearing to determine if the person’s license should be suspended.
He also said troopers have had the option of seeking a warrant to compel a blood-alcohol test, but that is not required.
Justice Caleb Stegall, the newest member of the Kansas Supreme Court, and the only one appointed by Gov. Sam Brownback, dissented in the first three cases, arguing among other things that the statute should not be struck down in its entirety, but should be decided on a case-by-case basis.
Stegall also filed a concurring opinion in the fourth case, striking down police officers’ warnings that refusing to submit to a DUI test could result in further criminal penalties. Although he agreed with the outcome in that particular case, he said there could be circumstances in other cases under which giving such a warning could be deemed constitutional.
He said the four rulings “will have the effect of overturning countless numbers of otherwise lawful driving-under-the-influence convictions in this state.”