We have two developments this week in Kansas DUI law, both precipitated by people who should know better. The first happened today. In State v. Rickerson, the Appeals Court found that mandatory detention of DUI suspects is unconstitutional. Specifically, absent a case-by-case determination of impairment and whether ongoing impairment places the public at risk, courts cannot hold DUI suspects indefinitely for any pre-determined period of time without setting bond. This is a good, common sense ruling, and one that is already complied with in most Kansas counties, including Sedgwick. The courts have saved us from local law enforcement authorities who don’t know or care that they are disrespecting the Constitution.

Second, the Kansas legislature passed a law that will criminalize DUI refusals. Thus, while you can refuse a breath test today and face mandatory suspension (see K.S.A. 8-1002) and DUI prosecution with the State using other evidence of impairment besides the blood or breath test failure (see K.S.A. 8-1567(a)(3)), it will now be an equivalent crime just to refuse the request for a blood or breath test, even if you just want to talk to your lawyer first. This is an unconstitutional cop-out, one that was not done for the sake of public safety, rather, it was done so judges can avoid being woken up late at night to approve warrants for blood draws and to save the legislature from passing a law that permits forced blood draws when cops have probable cause to suspect someone is under the influence. Money and inconvenience have resulted in lawmakers who either don’t know jack about the Constitution or don’t care if their actions run roughshod over it passing a law that will likely be overturned by the Kansas or U.S. Supreme Court. Sad. I pray Governor Brownback sees their true motivation and vetoes it forthwith. (It hasn’t made it past the Senate yet, but I doubt they will have the guts to vote against it–hot potato?)

For some constitutional law background, a few dissenting representatives asserted the 5th amendment right against self-incrimination. There’s a good argument here, but it’s a pretty weak one. This right applies to statements and is addressed with Miranda warnings. Blood or breath tests are non-testimonial evidence and arise from probable cause. See State v. Jones (breath tests are invasive searches and thereefore require sufficient probable cause). Thus, it seems to me that the most applicable Bill of Rights provision is the 4th amendment right against unreasonable searches and seizures. Simply put, lawmakers can’t take away the PC requirement just by making it a crime to not consent to a search. This is why I think the legislators are doing this out of laziness. To be clear, with a warrant or law mandating forced blood draws with PC, they can get there legally. They just don’t care to.

Put another way, your legislators just voted for an expensive, drawn out lawsuit that will cost taxpayers more money than would have been the case had they paid attention to the document they swore to protect and defend.