Tag Archives: No Refusal

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.

Follow Barry Donegan on Facebook and Twitter.

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.

 

TN Cops to Draw Blood at Labor Day Weekend ‘No Refusal’ DUI Checkpoints

Tennessee has a new Labor Day tradition. According to WKRN-TV, the Tennessee Highway Patrol will continue its “no refusal” blood-extraction DUI checkpoints this Labor Day weekend, starting on midnight on August 29 and continuing until midnight on September 1. Under “no refusal” enforcement, suspected drunk drivers will be forced to submit to a breathalyzer or blood test, even if they refuse.

The Tennessee Department of Safety and Homeland Security issued a press release on this weekend’s crackdown, saying, “State troopers will conduct ‘No Refusal’ enforcement in the following counties: Union (Knoxville District); Hamilton and Marion (Chattanooga District); Montgomery (Nashville District); Shelby (Memphis District); Hawkins (Fall Branch District); Smith (Cookeville); Maury (Lawrenceburg); and Hardin County (Jackson District).” The press release also describes how police coverage will work over the weekend, “In addition to ‘No Refusal’ enforcement, highway patrol personnel will also conduct driver’s license, sobriety and seat belt checkpoints, as well as saturation patrols and bar and tavern checks.”

Due to the disputed constitutionality of police checkpoints, Tennessee state law requires that their locations be publicly announced in advance so that Tennesseans who don’t want to be inconvenienced can adjust their routes. The locations of this weekend’s checkpoints can be found at this link.

Civil liberties advocates often question whether police checkpoints, which force motorists to submit to a criminal investigation on the basis of their geographic location rather than probable cause, violate the Fourth Amendment to the US Constitution. Also, police positioned at checkpoints do not have an opportunity to see how a suspect has been driving and instead must rely on less-precise indicators like red eyes or fatigued behavior, which might also suggest that the suspect is coming home from a long work shift and not intoxicated at all. As more officers are placed at checkpoints, fewer can subsequently be assigned to patrols upon which they could watch for impaired motorists in the act of driving dangerously.

Forced blood extractions take place off-site at a police precinct, making the process time consuming for individuals who might be innocent. Additionally, for those who refuse to comply, extraction locations are equipped with tools to strap down suspects and masks to cover their faces.

Approval for involuntary blood draws is typically attained via telephone as judge magistrates will remain on standby throughout the weekend to handle officers’ requests.

Police Planning 4th of July ‘No Refusal’ Blood-Draw DUI Checkpoints

On July 4th, 1776, America’s founding generation took its first historic step towards an experiment in freedom that unleashed one of the most innovative and productive nations in world history. On July 2nd of that year, the Second Continental Congress had voted to separate itself from the oppressive tyranny of the Kingdom of Great Britain. Two days later, the Declaration of Independence was drafted (though historians dispute whether it might have been signed a month later).

Since that time, citizens across the US have celebrated American-style freedom on the Fourth of July, grilling out and firing fireworks in honor of the liberties enshrined in the Bill of Rights. However, some alarming new Independence Day traditions have emerged in the contemporary United States. State and local police across the country are preparing “no refusal” DUI and DWI checkpoints at which citizens will be investigated for suspicion of driving under the influence of drugs or alcohol, not on the basis of their driving, but simply due to their geographic location. Those who refuse to submit to a breathalyzer test will be forced to endure a blood test instead.

Texas police have announced that they will be running “no refusal” programs with mandatory blood testing for those who refuse breathalyzers, as will law enforcers in Oregon and Tennessee. Judicial officials will be on hand all throughout the holiday weekend to approve warrants, in some cases over the phone, that allow officers to take blood from citizens by force, which will then be examined for intoxicants. Due to the questionable constitutionality of its program, Tennessee state law requires that the locations of the checkpoints be made available to the public in advance. The Tennessee Department of Safety and Homeland Security has publicized its checkpoint locations, which can be found at this link.

Civil liberties advocates have long argued that checkpoints violate the Fourth Amendment to the US Constitution, as being in a geographic location does not constitute probable cause to launch a criminal investigation against an individual. Also, checkpoints take officers off the street, where it would be easier to watch for reckless drivers, and instead concentrate them in specific locations where drivers wait in a line, making it impossible for police to determine whether or not the individuals being investigated are driving dangerously. Without being able to watch for signs of reckless driving, officers will rely on less reliable indicators such as communication skills or redness of eyes to make judgments on drivers’ level of impairment, possibly putting individuals with colds, allergies, or long shifts at work in a position to be falsely suspected of DUI. Those who do not want to submit to a breathalyzer test could then be subjected to a blood test by force on the very day set aside by Americans to celebrate freedom from tyranny.