Kansas Supreme Court Rules Regarding Criminalization of Test Refusal in DUI Cases
The Kansas Supreme Court recently made a monumental decision in the Ryce case, regarding whether or not a driver can withdraw their consent to take a breath test. K.S.A. 8-1001 addresses the fact that by driving on roads in Kansas, drivers have provided implied consent to submitting to a breath test. In other words, if you are pulled over and a DUI investigation ensues, you have already consented to taking the breath test. K.S.A. 8-1025 then went a step further and clarified that if you refuse to take the breath test at the police station, you are criminally liable for making such a choice. That crime can either be charged as a misdemeanor or a felony. If the refusal accompanied a misdemeanor drunk driving charge, it was charged as a misdemeanor. Alternatively, if the refusal accompanied a felony DUI charge, the refusal was charged as a felony. The penalties were just as serious as the DUI. After that statute was enacted, people have been placed in jail and paid serious fines for refusing to take the breath test. In February of 2016, the Kansas Supreme Court clarified that the criminalization of refusals as set out in K.S.A. 8-1025 was unconstitutional. However, the United States Supreme Court later clarified in three other cases, (including the Birchfield case) from different states that criminalizing a refusal was Constitutional under the United States Constitution. This obviously put the Kansas decision under scrutiny and confusion for the last year. However, the Kansas Supreme Court jut clarified again that K.S.A. 8-1025 was unconstitutional in that it criminalized a person NOT for refusing an officer’s order to take the test, but rather because it penalized a person for withdrawing their implied consent.
As a Kansas DUI defense attorney, I have been arguing these kinds of issues for several years. This case can now provide significant direction and help for many of my cases. If you are dealing with a DUI, alcohol, or drug related offense, call our Kansas drunk driving defense firm now to speak with an experienced DUI lawyer.