Kansas Criminal Breath-Test Refusal Statute Unconstitutional

Posted by Matt McLane | Nov 23, 2016 | 0 Comments

In State v. Ryce, Ryce moved to dismiss his charge for refusing to submit to DUI testing in violation of K.S.A. 8-1025, arguing that it was unconstitutional to criminalize a test refusal based on his rights of unlawful search under the Fourth Amendment.  The trial court agreed and suppressed Ryce's refusal, meaning the jury would not hear evidence that he refused the test.  On appeal to the Supreme Court, the Court affirmed the ruling, holding: (1) despite the implied consent laws requiring all licensed drivers to submit to testing if requested by law enforcement, the search and seizure principles of the Fourth Amendment still apply; and (2) a person has the right to refuse testing under the Fourth Amendment since a test is a "search" of deep lung air and a driver can not be compelled to submit without a warrant; (3) a person has substantive due process rights, i.e. the right to counsel and/or the right to refuse to provide incriminating evidence; (5) the refusal statute, 8-1025, is unconstitutional because it punishes a person for refusing a search, which is a protected right under the Fourth Amendment.

Please note this case is not current law as the Kansas Attorney General has requested a “stay” and also requested a "motion to reconsider”. Until that is determined and the time also has passed to appeal it to the U.S. Supreme Court this will not be the “law of the land”.  However, the US Supreme Court recently ruled on three similar state statutes (not Kansas) and ruled that blood draws are inherently invasive and certainly require a warrant prior to the blood draw but that collection of a breath sample via the intoxilyzer machine is not invasive enough to require a warrant so long as the officer has reasonable suspicion to believe the person was operating under the influence.  Kansas has not made a formal ruling on the state of the law, 8-1025, following the Supreme Court's ruling and therefore the Ryce decision noted above is still recognized as current law. Thus, prosecutors state wide and have not filed "refusal" charges under 8-1025 since the 02/26/2016 ruling in Ryce. 

About the Author

Matt McLane

Matt McLane was born in Topeka, Kansas, and moved to Pittsburg, Kansas in 1980 where he attended middle school, high school and college. Upon graduation from PSU in 1992, Matt moved back to Topeka where he attended Washburn University law school. Upon graduation, he moved to Overland Park and worked in a small firm handling DUI and traffic cases. He opened the McLane Law Firm in April 2011 and has built his firm on a strong referral base and solid reputation.


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McLane Law Firm

Matt McLane has been defending individuals charged with DUI, traffic and criminal offenses since his graduation from Washburn University Law School in 1996. Licensed in the states of Kansas and Missouri. Mr. McLane specializes in DUI and criminal defense throughout the Kansas City metropolitan area.

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