Kansas Supreme Court: Law Making It a Crime to Refuse DUI Chemical Testing Is Unconstitutional

By John McCurley

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Like all other states, Kansas has an “implied consent” law for drivers suspected of DUI (driving under the influence). These laws generally require that drivers arrested for driving under the influence submit to chemical testing for the purpose of determining whether and how much alcohol or drugs are in their bodies. (These tests typically involve the analysis of blood, breath, or urine.)

In most states, the consequences of refusing a chemical test are administrative—the driver’s license will often be suspended for a period of time and the driver might need to pay a fine or install an ignition interlock device. These administrative penalties for refusing testing are often in addition to any punishment for driving drunk, which is its own crime.

Kansas, however, is one of a handful of states that make it a separate crime–under at least some circumstances—to refuse a chemical test. So, until quite recently, some drivers in Kansas who drove drunk and refused testing could be convicted of both a DUI and test refusal.

Refusal Statute Struck Down

Generally, Kansas law makes refusing a chemical test a crime if the driver has at least one prior DUI conviction or instance of refusing a chemical test. A conviction carries mandatory jail time and can be a felony. (Kan. Stat. Ann. § 8-1025 (2015).)

But on February 26, 2016, in State v. Ryce, the Kansas Supreme Court decided that the law making it a crime to refuse a chemical test violates federal constitutional rights of drivers. The court explained that, under the Fourth Amendment’s prohibition against unreasonable searches and seizures, drivers have a right to refuse chemical testing. The law making refusal a crime violated that right, according to the court.

The decision means that Kansas drivers who refuse to submit to chemical testing can no longer be convicted of refusal as its own offense. (Refusal will, however, still likely lead to administrative consequences such as a suspended license.) It’s unclear how the decision will affect drivers already convicted of refusing a chemical test. (State v. Ryce, No. 111, 698, slip opinion.)

DUI Testing After Ryce

The Ryce decision has important implications for law enforcement. The case naturally led to another decision that was issued by the Kansas Supreme Court on the same day it decided Ryce. In the second case, the court found that an officer violated a DUI suspect’s Fourth Amendment rights by coercing him into submitting to a chemical test.

In the second case, the officer told the suspect that if he refused to take a chemical test, he would face criminal penalties equal to or worse than those resulting from a DUI conviction. The suspect consented to the testing, but later argued that it constituted an illegal search and seizure on the theory that he consented only after being threatened with criminal penalties. The court agreed that the suspect’s consent wasn’t freely given because the officer’s advisement to the suspect—that criminal penalties could be imposed—wasn’t true. (See State v. Nece, No. 111, 401, slip opinion.)

Now, in Kansas, refusing to submit to a chemical test isn’t a crime. Not only that, but officers can’t threaten criminal prosecution to get drivers to agree to testing. It remains to be seen whether other states that have laws criminalizing chemical test refusals will follow the Kansas Supreme Court’s lead.