Kansas drivers who refuse breath test to be charged with DUI

OLATHE, Kan. - Kansas legislators have made it a crime to refuse a breath test.

"The change is that if an individual is pulled over on suspicion of drinking and driving and that person refuses to take a breath or blood alcohol test, the individual has committed a crime," Johnson County District Attorney Steve Howe said.

Howe led the effort to get the bill passed and said the number of Kansas drivers refusing to take a breath test had shot up to 30 percent this year, which made it very difficult to keep repeat offenders off the road.

"Those who refuse to take the breath test were not being held accountable because many times there was very little evidence that the law enforcement prosecutors could use, and they were escaping justice," Howe said.  "Someone has their 10th DUI or 15th DUI, I can almost guarantee that individual has numerous DUIs where they refused the breath test and have not been convicted and not held accountable."

Leawood defense attorney Brian Leininger disagreed. He said prosecutors twisted the facts to get the bill passed.

"They exaggerated them for sure," Leininger said.  "The idea of a person getting one DUI after another, refusing to blow and getting away with each of them is ridiculous.  It may have happened once in the world, I don't know, but it doesn't happen like they say it does."

Leininger said the law is unconstitutional and violates the Fifth Amendment.

"If you don't become a witness against yourself, you are going to be guilty of a crime. I can't think of a more blatant violation," Leininger said.  "The Constitution should mean something. It shouldn't be violated just so the prosecutors' job will be a little bit easier."

The law has one exception. If a driver has no previous arrests for DUI and has never refused a breath test, he can refuse the test one time without getting a DUI.  The driver will lose his license for one year.

The law goes into effect July 1.

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