Feb. 26–Kansans who refuse to submit to a breath or blood test in DUI investigations cannot be criminally prosecuted for that refusal, the Kansas Supreme Court ruled Friday.
The court found unconstitutional a state law making it a separate crime to refuse such a test without a court-ordered warrant.
In its 6-1 ruling, the court found that the tests were in essence searches and the law punishes people for exercising their constitutional right to be free from unreasonable searches and seizures.
Under Kansas law, anyone who operates a motor vehicle in the state has given implied consent to submit to such testing.
But the court ruled Friday that the withdrawal of that consent cannot be criminally punished.
Justice Caleb Stegall, wrote a dissent in which he said that the law could be applied constitutionally in some situations.
In another related opinion Friday, the court ruled in the case of a person who consented to such a search after being told they would face criminal prosecution if they refused.
The court found that such a warning was “coercive” and rendered any consent involuntary.
Jay Norton, an Olathe criminal defense lawyer and expert on DUI law, said the law was used often “as a hammer” to induce people to plead guilty to DUI to avoid being charged with the additional crime of refusing a test.
He said the law had represented “prosecutorial overreach at its zenith,” and called Friday a “great day” for the Kansas and U.S. constitutions.
“The Supreme Court has affirmed the right of the individual citizen to be free from forced searches by the government,” Norton said.
Tony Rizzo: 816-234-4435, @trizzkc
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