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    A new way to defend escalated DUI enhancements for refusals

    Posted on: February 28th, 2016 by rutanlaw No Comments

    I found this post on Facebook. Kansas got it right before all other States. Kansans who refuse to submit to a breath or blood test in DUI investigations cannot be criminally prosecuted for that refusal, the state’s Supreme Court ruled Friday. The court found unconstitutional a state law making it a crime to refuse such a test when no court-ordered warrant exists. 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 that the implied consent is not irrevocable and withdrawal of that consent cannot be criminally punished. “Once a suspect withdraws consent, whether it be express consent or implied (under the statute), a search based on that consent cannot proceed,” the court ruled. The state’s “compelling interest” in combating drunken driving and prosecuting DUI offenders does not outweigh the fundamental individual rights protected by the Constitution, according to Friday’s opinion. The refusal law was classified either as a misdemeanour or felony, depending on how many times an individual had been charged with violating it. Justice Caleb Stegall wrote a dissent in which he said that the law could be applied constitutionally in some situations. The ruling could have a big effect on the ability to prosecute repeat DUI offenders, said Johnson County District Attorney Steve Howe.

    But Howe said the U.S. Supreme Court is currently considering cases from other states on the same issue, and he is hopeful that Kansas could seek to join that action. “I’m confident the U.S. Supreme Court will find it lawful,” he said. “It’s a big public safety issue.” Until then, he and other prosecutors will consult with the Kansas attorney general to determine how to proceed on pending cases, he said. In a related opinion Friday, the court ruled in the case of a person who consented to such a search after being told he would face criminal prosecution if he 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 has often been used “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 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. But the ruling disappointed Christopher Mann, a member of the national board of directors for Mothers Against Drunk Driving and a former member of the Lawrence Police Department. “Obviously MADD’s position is that driving is a privilege and not a right,” he said. “We support penalties for refusing to take chemical tests. We think law enforcement members need to have all the tools at their disposal to keep our roads safe from drunken drivers who kill about 10,000 people a year.” Twenty per cent of arrested drunken drivers refuse to take chemical tests, Mann said. “That 20 per cent now has a loophole to potentially avoid penalties for their actions,” he said.

    The U.S. Supreme Court announced in December that it will decide whether states can criminalize a driver’s refusal to take an alcohol test. In all three cases the high court will consider, the challengers argue that warrantless searches are justified only in “extraordinary circumstances” and that routine drunken-driving investigations are among the most ordinary of law enforcement functions in which traditional privacy rights apply. The U.S. Supreme Court ruled in 2013 that police usually must try to obtain a search warrant before ordering blood tests for drunken-driving suspects. The high court said circumstances justifying an exception to the warrant requirement should be decided on a case-by-case basis. The Star’s Brian Burnes and The Associated Press contributed to this report. Read more here:

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