The Kansas Supreme Court recently struck down the law making it a crime to refuse a breathalyzer test during a suspected drunk driving stop.
Under the state law, anyone who drove on public roads in Kansas gave “implied consent” to taking part in the test. On top of a possible DUI conviction, a refusal of a breathalyzer resulted in up to a year suspension of one’s driver’s license, up to six months in jail and a fine of about $1,000.
Supporters of the Kansas Supreme Court’s decision said the state law was a violation of the Fourth Amendment of the United States Constitution, which protects against warrantless search and seizures.
“You cannot make me give you the product of my body without a warrant," explained attorney Doug Langston, who supports the Kansas Supreme Court’s decision.
Langston said the state law could lead to a slippery slope encroaching on people’s constitutional rights.
“If you take away this one [the Fourth Amendment], what's to keep you from not eroding the next one?” he asked. “The field sobriety testing and the officer’s observations will be enough, if done correctly, to lead to a conviction without eroding my Fourth Amendment right."
Breathalyzer tests are the most conclusive evidence tools used by police during drunk driving cases.
Johnson County District Attorney Steve Howe is a supporter of the state law, and he is worried that the change may lead to drunk drivers getting off the hook.
“The reason we put the law in place is because many of the habitual DUI offenders refuse to do any field sobriety tests or breath tests,” Howe explained. “It leaves prosecutors with little or no evidence."
Kansas drivers who refuse to take the breathalyzer test can still lose their license for up to a year.
The decision from the Kansas Supreme Court is not final. In June, the United States Supreme Court is expected to issue an opinion on the case.
Around a dozen states, like South Dakota and Minnesota, have laws similar to the one struck down in Kansas.
The decision from the U.S. Supreme Court could lead to changes in the other states as well.
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Tom Dempsey can be reached at tom.dempsey@kshb.com.
