Kansas Supreme Court rules the Kansas criminal refusal statute is unconstitutional

Posted by Matt McLane | Mar 16, 2016 | 0 Comments

Earlier this month, the Kansas Supreme Court ruled that the criminal breath test refusal statute, K.S.A. 8-1025, was unconstitutional in that it prevented a driver from legally withdrawing his or her consent to the breath or blood testing as required under current state law during a DUI investigation.  The Kansas implied consent law allows law enforcement to request a test of blood, breath, or urine upon reasonable suspicion that a driver was impaired at the time he or she operated a motor vehicle.  However, the implied consent law does not revoke one's right to withdraw consent, a fundamental right under our constitution.  Further, the court ruled the refusal statute was coercive in nature by forcing a driver to provide evidence to the state that will be used against him or her at a trial.  Criminal defense lawyers have long argued since the inception of 8-1025 that a driver has every right to refuse breath testing on the grounds the law violates their privilege against self-incrimination. The result of the ruling will likely be an increase in the use of warrants to get a blood sample drawn from the driver for prosecution purposes.  Unfortunately, drivers are responsible for the lab fees associated with a blood draw order and lab analysis, currently set at $400 and imposed at the time of sentencing.  Furthermore, it will be a more time consuming procedure for both the driver and law enforcement officer who must first secure the warrant and then transport the alleged drunk driver to the local hospital for the draw.  Regardless of these hurdles,  the Supreme Court ruling was correct since the Constitution protects citizens from unreasonable searches in the absence of a warrant.              

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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