Criminalize DUI Test Refusal - US Supreme Court vs Kansas Supreme Court

A few years ago, the Kansas legislature made it a criminal act to refuse to take a chemical test during a DUI investigation. As a criminal defense attorney, I immediately thought it was an Unconstitutional law as it violates both the United States Constitution as well as the Kansas Constitution. Finally, in February of 2016, the Kansas Supreme Court issued a ruling that it was indeed Unconstitutional. They were specifically referring to the Kansas Constitution. However, the United States Supreme Court just recently ruled in Birchfield v. North Dakota that it was not a violation of the United States Constitution to criminalize the refusal of the breath test. In Contrast, the United States Supreme Court also ruled in Beylund v. North Dakota that it was a violation to criminalize the refusal of the blood test. While the US Supreme Court trumps the Kansas Supreme Court, it doesn’t necessarily settle the matter in Kansas because the United States Supreme Court didn’t even mention the Kansas Constitution in the ruling. Regardless, the battle over suppressing chemical tests in drunk driving cases is now much more difficult for the criminal defense lawyer. I anticipate that Kansas will probably do something similar to the US Supreme Court and allow the criminalization of breath tests, but not the refusal of blood tests. As of today, most Kansas law enforcement I am encountering still is not criminalizing refusals in Kansas for the time being. This is probably because of all the ambiguity in the status of this area of law and not wanting to cause problems in obtaining DUI convictions. That will likely change as Kansas settles the issue in the coming months as the Kansas Supreme Court issues new rulings on the matter.

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