Kansas Supreme Court Rules Chemical Test Refusal Not Criminal

Posted by Jon Ibanez on February 29th, 2016

This past Friday the Kansas Supreme Court ruled that it is unconstitutional to criminalize a chemical test refusal following a DUI arrest in that state.

Prior to the ruling, refusing a chemical test could land a person a misdemeanor or a felony charge depending on how many times they had refused in the past.

The Kansas Supreme Court ruling comes on the heels of the United States Supreme Court’s announcement that they’ll decide the same issue for a Minnesota law which also made it a crime to refuse a chemical test after a DUI arrest. Let’s hope that the United States Supreme Court takes a page from the Kansas Supreme Court’s ruling when the time comes.

The Kansas Supreme Court’s 6-1 decision found that chemical tests are essentially searches and, as such, it was unconstitutional to punish someone for exercising their constitutional right to refuse that search without a warrant.

“Once a suspect withdraws consent, whether it be express consent or implied (under the statute), a search based on that consent cannot proceed,” the court held.

A common argument in favor of implied consent laws articulated in numerous previous court decisions was that a state’s compelling interest in combating drunk driving outweighed the “relatively minor” infringement on our 4th amendment right to be free from unreasonable searches and seizures. The Kansas Supreme Court, however, held exactly the opposite.

I agree. If the 4th Amendment doesn’t protect searches of our bodies, what does it protect?

Not surprisingly, Mothers Against Drunk Driving disagrees. “Obviously MADD’s position is that driving is a privilege and not a right,” said Christopher Mann, former police officer and member of the national board of directors for MADD. “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.”

I too agree that we need to keep our roads safe from drunk drivers, but not at the expense of our constitutional rights.

California too has an implied consent law requiring that drivers who have been lawfully arrested on suspicion of driving under the influence submit to a chemical test. Although California does not make it a separate criminal offense to refuse a chemical test like Kansas or Minnesota, it does allow prosecutors to allege a “refusal enhancement” to the criminal DUI charge.

If a person is found to have refused a chemical test in California, they face a one-year license suspension through the DMV, additional jail time, a longer DUI program, a MADD Victim Impact Panel lecture, and/or a hospital and morgue program.

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