In a reversal of older policy, the Kansas Supreme Court ruled on February
26 that those drivers who are stopped on suspicion of drunk driving cannot
be punished for declining to submit to a breath or blood test of their
blood alcohol content, and law enforcement can no longer warn drivers
that refusal can result in harsher penalties.
Justice ruled 6-1 that asking for a breath or blood sample without a warrant
constitutes a “search” and violation of the Fourth Amendment.
This ruling, according to the court, will force police to obtain a warrant
before forcing someone to such a search.
Refusing to submit to a blood alcohol test was charged as a misdemeanor
and carried up to six months in jail with up to $1,000 in fines for the
first such offense, on top of those penalties related to a DUI conviction.
Under the implied consent law which Kansas used to employ, and which most
other stats currently use, the act of driving on Kansas roads was considered
consent enough to force drivers to submit to a chemical test. The court
instead argued that the Federal and State Constitution provide for drivers
to withhold consent, and Kansas cannot punish a driver for withdrawing consent.
How much of an effect the ruling will have remains to be seen since officers
may have the ability to electronically apply for a warrant during the
stop and move forward once one is given.
If you or a loved one have been arrested for drunk driving, retain an Olathe
criminal defense attorney from my firm to challenge your arrest.