Tag Archives: Blood Test

Kansas Supreme Court Overturns Law Criminalizing DUI Test Refusals

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.

[RELATED: TN Cops to Draw Blood at Labor Day Weekend ‘No Refusal’ DUI Checkpoints]

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.

[RELATED: Amid Protests, Sheriff Ends Participation in “No Refusal” Blood-Draw Checkpoints]

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.

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Amid Protests, Sheriff Ends Participation in “No Refusal” Blood-Draw Checkpoints

An article posted last week on BenSwann.com noted that police in Clark County, OH were planning to and, on Friday, eventually did conduct “no refusal” checkpoints at which drivers suspected of driving under the influence could be forced to submit to a blood test against their will if they refused to consent to a breathalyzer test. According to WHIO-TV, Clark County Sheriff Gene Kelly recently announced that his office would no longer be participating in future “no refusal” checkpoints after Friday’s program drew protesters from across Ohio. Sheriff Kelly, responding to a volley of complaints that he received via social media and email, said, “If this is not a positive event then we need to find another way to do our job and create an environment of public safety, and I’m intending to do that.”

WHIO-TV NewsCenter 7‘s video coverage of the controversy credited a blog published on Infowars with inspiring state-wide activists to gather at the checkpoints in protest, waving signs with slogans like, “Vampire cops ahead, they will take your blood! Turn now!” Though 464 drivers passed through last Friday’s checkpoint, no search warrants were issued for involuntary blood extractions.

Protesters complained that the “no refusal” checkpoints violate Fourth Amendment privacy protections found in the Bill of Rights to the Constitution, as the program targets drivers for investigation on the basis of their geographical location, rather than their driving, and because many feel that forced blood extractions are an unreasonable type of search.

Springfield Police Division Lieutenant Tom Zawata told WHIO-TV that he is uncertain whether or not more “no refusal” checkpoints will be conducted this year. “We chose to use it at this checkpoint as a way to make the public aware there is an opportunity and existing ability to obtain a search warrant,” said Zawata, implying that the checkpoints were intended as a promotional and educational event, rather than a serious effort to apprehend known drunk drivers. Since the Clark County Operating a Vehicle Impaired Task Force is made up of officers from several police agencies, the fact that Sheriff Gene Kelly’s office is not participating in the program in the future does not necessarily mean that there will be no more “no refusal” checkpoints in the county.

Behind the scenes, the federal government recently decreased its financial contributions to Clark County’s OVI checkpoints program, leading police to conduct fewer of them this year than in previous years.