Kansas Moves To Punish Refusing to Incriminate Yourself in DUI Cases

Posted by Lawrence Taylor on May 19th, 2012

I’ve posted long and hard over the years about the inaccuracy and unreliability of breathalyzers.  See How Breathalyzers Work – and Why They Don’t.  But at least you could always refuse to take the test.  You aren’t required to incriminate yourself, right?  I mean, this is America and we have the Constitution to protect us.

Maybe not.  This looks like yet another in a long list of constitutional rights that are slowly disappearing in DUI cases.  See, for example, The DUI Exception to the Constitution, The Disappearing Right to Jury Trial…in DUI Cases, DUI and the Disappearing Right to CounselAre DUI Roadblocks Constitutional? and Forced Blood Draws by Cops: Constitutional?.

House Votes to Criminalize DUI Test Refusals

Topeka, KS.  May 17 —  After a lengthy discussion of constitutional rights, the House has approved a bill that makes it a crime for suspected repeat offenders to refuse a drunk-driving test…

Under Senate Bill 60, drivers with a DUI conviction or prior refusal of a DUI test would automatically be guilty of a misdemeanor if they refuse a test. The penalty would be the same as for a DUI conviction.

The House passed the bill 103-13, but not without some concerns expressed by members that it “tramples” the right to remain silent when accused of a crime.

Rep. Sean Gatewood, D-Topeka, said he’s seen many drunk driving crashes and the harm they cause working as a firefighter and paramedic.

But he said he was not comfortable with making it a crime to refuse to take a breath or blood test.

“These are American citizens and they have the right to remain silent, which this bill sort of tramples on, because if you just stand there silent … then you’re a criminal,” Gatewood said. “You have your 4th and 5th Amendment rights … and I just think there is no greater ridge to stand on than the Constitution of the United States.”

Gatewood proposed to send the measure back to a House-Senate conference committee for further work, but that motion died on a 23-88 vote.

Rep. Pat Colloton, R-Leawood, who carried the bill on the floor, acknowledged that its impact on constitutional rights was an important issue, but on balance she supported it.

She said courts are being clogged with repeat offenders who refuse the DUI test and take their chances with a jury.

Some lawmakers said stopping drunk drivers outweighed the constitutional questions.

“I would gladly walk the line, breathe into the tube and draw my blood if it would get repeat drunk drivers off the road,” said Rep. Bill Otto, R-LeRoy. “This is about people who are killing people.”

“This is not about constitutional rights,” he continued. “What about the constitutional right to life, liberty and the pursuit of happiness? (a phrase from the Declaration of Independence, not the Constitution) When you’re killed by a drunk driver, they’ve deprived you of your life. Death penalty, when you did nothing wrong.”

So….if you refused to incriminate yourself, you would be convicted of a crime and given the same sentence as if you had been convicted of drunk driving.  In other words, you are basically convicted of drunk driving because you wouldn’t incriminate yourself!

Another constitutional right slowly fades away….

  • DUI-The Constitution Need Not Apply

    From the article, “Some lawmakers said stopping drunk drivers outweighed the constitutional questions.” -…and the founders of this once great country roll over in their graves. By this rationale, these lawmakers should certainly declare that anyone accused of aggravated assault, rape, murder, or other violent crime should be forced to incriminate themselves with DNA submittal or face the same penalty as a conviction for those crimes. Why should these people receive MORE constitutional protections than an honest, law abiding mother of three who perhaps had a glass of wine while out to dinner?

    Our lawmakers openly, and proudly, declare that they are not bound by the constitution.

  • DUI-The Constitution Need Not Apply

    I’ll be brief.
    Well, at least the machines used by Kansas (Intox8000) to violate people’s civil rights are scientifically reliable and accurate….right? They are strictly maintained and quality control tested by LEAs and KS Dept of Health and Environment….right? Wrong on both counts.
    Conducting quality control (QC) tests on individual machines, once each week (per regulations and SOPs) has become so burdensome on these agencies (each test takes about 20 minutes) that they’ve decided not to do most or all of them. Then they falsify reports saying that QCs were completed.
    Actually, these machines are no longer even required to be accurate. These same brilliant Kansas legislators have removed the words “scientifically reliable and accurate” from relevant statutes. The machines are only required to be “certified” by KDHE. Research has shown that NOTHING will prompt KDHE to revoke a machine’s, or agency’s certification.
    Stevens County, KS sheriff’s office was issued an 8000 in 2008. Immediately they began neglecting to conduct QCs. This was discovered by KDHE supervisors during an annual site inspection in 2011, when NO record of the QCs appeared in the memory of the machine (or the data download). Over a three year period, this LEA failed to conduct QCs during 147 of 175 weeks…84% of required QCs not done. Neither the LEA, nor the machine lost their certification. The agency was silently placed on “double-secret” probation for six months. During this probation, people were convicted using unreliable evidence from this machine. AFTER the “probation” had ended, Christine Houston (Breath Alcohol Program Supervisor-KS), sent a letter to the Hugoton City Attorney detailing this issue. In it, she summarized, “It was the belief of the BA Program staff that the agency not be punished for one individual’s transgressions.” How thoughtful. Nevermind the rights of citizens. Three weeks AFTER that letter, at least ONE Brady Notice was sent to an area defense attorney with a client who tested on that machine.
    This case also shows incompetent supervision by KDHE. For three consecutive annual site inspections the lack of QCs was completely missed by KDHE personnel while people were being convicted with fraudulent evidence.
    Research shows that a particular machine (8000) in Topeka had ZERO QCs conducted on it over at least a one year period covering 2009-2010. 100% failure to conduct QCs per regulation and SOP. Surely this would be cause for alarm, decertification, or at least another “double-secret” probation. Wrong. Christine Houston testified under oath that this was of no concern. Three months AFTER initiating an investigation of Stevens Co. because 84% of QCs were not on a machine’s memory, 100% of QCs missing from a machine’s memory was acceptable. Why? Because she knows and trusts those officers. If they say they did them…they did. That was good enough for the court.
    This is just the tip of the iceberg. I’ve left out many details in the interest of brevity.
    No computerized machine designed and used by humans to provide their government with evidence in a criminal prosecution against its citizens can ever overcome or replace the integrity of its human caretakers and operators.

    Houston….we have a problem….in Kansas.