The Kansas Supreme Court ruled Friday that a state law that makes it a crime for a DUI suspect to refuse a warrantless blood or breathalyzer test is unconstitutional.
The law assessed criminal penalties ranging from a misdemeanor for a first-time refuser to up to a felony for repeat offenders.
According to The Kansas City Star, the justices voted 6 to 1 against the law, claiming that blood and breathalyzer tests are a form of search and that the criminal law prohibiting refusals imposes a punishment against individuals who attempt to reserve their Fourth Amendment constitutional right not to be subjected to an unreasonable search and seizure.
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The law had been enacted in an effort to give teeth to the state’s implied consent law, which requires residents to consent to being subjected to DUI investigations as a condition of obtaining a driver’s license.
However, the court ruled that drivers who agree to the implied consent statement retain the right to terminate the agreement.
“Once a suspect withdraws consent, whether it be express consent or implied (under the statute), a search based on that consent cannot proceed,” stated the court in its majority opinion.
Ex-Lawrence Police Department officer and current member of Mothers Against Drunk Driving’s national board of directors Jay Norton told The Kansas City Star, “Obviously MADD’s position is that driving is a privilege and not a right. … 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.”
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Kansas criminal defense attorney Jay Norton said in support of the ruling, “The Supreme Court has affirmed the right of the individual citizen to be free from forced searches by the government.”
In 2013, the U.S. Supreme Court ruled in Missouri v. McNeely that in most DUI cases police must obtain a warrant before ordering a suspect to submit to a blood or breathalyzer test, except in “exigent circumstances,” with justices noting that the fact that the suspect’s body might be metabolizing evidence of intoxication at the time of the stop is not an emergency reason justifying a warrantless search.
The U.S. Supreme Court recently announced that it will consider whether state-level laws criminalizing the refusal of warrantless DUI tests are constitutional.
According to KSN-TV, “roughly a dozen” states currently have laws on the books which criminalize the refusal of warrantless blood or breathalyzer tests by DUI suspects.