Kansas DUI law that makes test refusal a crime is ruled unconstitutional

On Friday, the Kansas Supreme Court ruled the state’s DUI testing refusal law unconstitutional, setting a remarkable precedent concerning forced testing of those suspected of driving under the influence.

In a 6-1 ruling, the court decided the state’s law, which had made it a crime to refuse breathalyzer or blood alcohol tests without a court-ordered warrant, is excessive punishment. Those tests, the court found, amounted to searches, and the Kansas law “punishes people for exercising their constitutional right to be free from unreasonable searches and seizures,”

Might be a bit of controversy in this. I won't take a drink and drive. I try to not even have my car keys in my pocket if alcohol is part of the equation. The worst thing I ever got a ticket for was speeding and I've never even been pulled for suspicion of DUI.

I don't 'act like this' because I've ever worried about becoming a hazardous road condition. I 'act like this' because the penalties for Driving Under the Influence are so draconian. Anyone else here remember the time when DUI wasn't an acronym anyone had ever heard of before? People have been arrested for Drunk Driving for a really long time, but it was that little push by an organization calling itself MADD that gave the movement legs ... and ensured a mostly permanent loss of Liberty for people in this country.

There's nothing at all wrong with having a couple of drinks and driving home. The problem was we gave 'em and inch ... and they took a mile.

Anyway, I see this as a step back in the right direction. I personally hope to see this spread from state to state.

Source 1

Source 2

a reply to: Snarl

Your headline is inaccurate.

The ruling was not that sobriety tests are unconsitutional. The ruling was that the law which makes it a criminal offense to refuse is unconstitutional.

In my state it is not a criminal offense to refuse a sobriety test but you will have your license suspended. This seems to be the case in most states.

a reply to: Phage

Thanks. I agree. That was copied from the title of Source 1. Replaced with Source 2's title.

a reply to: Phage

As I have always understood it a drivers license is a privilege and not a right. Having the ability to refuse the dui test is a right and should be recognized as such so that all that is lost by refusal is the loss of the privilege of driving.

Disclaimer: I am not an attorney, nor do I play one in any popular drama series on Netflix.

a reply to: TerryMcGuire

The following argument has been used in at least three states (Pennsylvania, Ohio, and West Virginia) as a legal brief to support a demand for dismissal of charges of "driving without a license." It is the argument that was the reason for the charges to be dropped, or for a "win" in court against the argument that free people can have their right to travel regulated by their servants.

The forgotten legal maxim is that free people have a right to travel on the roads which are provided by their servants for that purpose, using ordinary transportation of the day. Licensing cannot be required of free people, because taking on the restrictions of a license requires the surrender of a right. The driver's license can be required of people who use the highways for trade, commerce, or hire; that is, if they earn their living on the road, and if they use extraordinary machines on the roads. If you are not using the highways for profit, you cannot be required to have a driver's license.

Source

a reply to: Snarl
I don't suppose that your source provides any of the cases which were dismissed based upon that argument?

a reply to: Phage

In my state it is not a criminal offense to refuse a sobriety test but you will have your license suspended.

I personally witnessed someone begin held down and a breathalyzer held to their mouth. The subject refused to breathe and they kept saying, "its okay, you're okay, you're doing fine, keep holding your breath as long as possible…"

This went on till he had to exhale and they got their reading. I was dumbfounded witnessing that.

If you refuse here in Alaska, they treat it the same as a being under the influence. Basically your lawyer will ALWAYS advise you to blow into the machine, as you may be able to contest the results...

If you simply refuse, however, it's automatic DUI penalties.

a reply to: intrptr

This went on till he had to exhale and they got their reading. I was dumbfounded witnessing that.

The story doesn't make sense. Are you claiming they held his nose?

A breathalizer requires a sustained, steady exhalation through the mouth.

originally posted by: Phage
a reply to: Snarl
I don't suppose that your source provides any of the cases which were dismissed based upon that argument?

Were you thinking something along the lines of Rule #52?

a reply to: Snarl

I don't know that that means.

Your source claims cases of driving without a license have been dismissed based upon the argument that driving is a right.

When I was a boy, there was a famous case in Vancouver......
Seems a local layer was stopped for DUI....
The cop came up to the window and the Lawyer had a bottle of "Mashkazino" cherries open on the seat beside him...idly
popping them into his mouth.....
Of course he blew a bunch and in court was let off because the Breathalyzer machine was influenced by the alchohol in the cherry juices.....
So if you drink and drive...always pack a jar of those sweet cherries they put in your drink.....

originally posted by: Phage
Your source claims cases of driving without a license have been dismissed based upon the argument that driving is a right.

Oh ... that. The source said the argument 'had been used' ... it didn't say anything specific to success or failure. Pretty clever, huh?

I think we both are fairly sure there's no established case law supporting such a claim.

But ... it sure sounds like refusing a breathalyzer is no longer a crime in Kansas. What do you think will happen to all the criminal records with that as a specification?

a reply to: Snarl

Unless so specified, such court actions are not retroactive. I think.

originally posted by: bandersnatch
The cop came up to the window and the Lawyer had a bottle of "Mashkazino" cherries open on the seat beside him...idly
popping them into his mouth.....

Are you referring to maraschino cherries? They are typically jarred in syrup, not alcohol.

originally posted by: intrptr
a reply to: Phage

In my state it is not a criminal offense to refuse a sobriety test but you will have your license suspended.

I personally witnessed someone begin held down and a breathalyzer held to their mouth. The subject refused to breathe and they kept saying, "its okay, you're okay, you're doing fine, keep holding your breath as long as possible…"

This went on till he had to exhale and they got their reading. I was dumbfounded witnessing that.

That would never register a reading, ever. You have to PURPOSELY blow in the tube to get an accurate BAC reading.

If that actually happened it should have been recorded, and sent to court as a lawsuit.

a reply to: Snarl

Interesting source there Snarl. I am familiar with that argument but had never seen it put down in an organized fashion as it was there. Like you I am no lawyer but do know that the privilege idea is what I have been driving under now for over 50 years. In a sense I can agree that licensing is a restriction of liberty, however living among lots of people needs some restriction of liberties, at lest in my mind.

When reading source you provided I googled four random somebody vrs, somebody and found that all of them were cases and findings over 100 years ago. For me, this makes a differnce. So I googled when the privilege thing came about and cound not really find a specific date. However I finally did find this on wiki

The concept of a "democracy" is a self-governing people. The government isn't some abstract entity, it is the just all the other people in your country. The 13 colonies, in passing the Constitution, established a process of government, which allows the individual to live largely free of other's anti-social behavior. The law defines anti-social behavior. When the automobile came along in the 1900s, the anti-social behavior that arose was leaving the scene of an accident in order to evade responsibility (accountability for damages). Auto accidents brought new types of serious injuries (blindness from shattering glass shards). Driver's licensing grew out of frustration with anonymity on the road, and its undermining of accountability. Would you like to drive in a world where other's could victimize you and your loved ones on the road, without any accountability? Without being able to be identified? On balance, the great majority would rather have accountability than some libertarian distopia where individuals are free to do whatever they want. They want the group to have some reasonable level of control over the individual. Looked at this way, driving an automobile makes sense to treat as a privilege with certain responsibilities

I found this interesting because of the now widely accepted concept of government being a foreign entity what works only to sustain itself to the detriment of citizens. I still hold to the concept that government is OUR government and I think that 100 years ago when the automobile began makeing it's mark, the good people of that time also considered the government to be THEIR government and liked the idea of restrictions on the rights of individuals who wished to drive autos on public streets. How else to hold miscreants liable.

a reply to: TerryMcGuire
Some federal cases of interest:
scholar.google.com...
scholar.google.com...
scholar.google.com...

Conveniently compiled:
pseudolaw.com...

The notion that driving is a right would seem to be similar to other "sovereign" claims. All have been repeatedly shot down.

originally posted by: TerryMcGuire
Interesting source there Snarl.

I was just having a go at Phage. I've never quite figured out how to keep a thread on-topic and he's excellent at nit-picking. It's all in good spirit I'm sure.

If the subject ever gets around to:
1. Automobile registration and why it's required
2. Driver's licensing and why it's required
It won't be me presenting the OP. I'll just delve in to liven up the discussion.

However, while we're on the subject ... I did take a peek at some of those cases and didn't see where a judge had really committed one way or the other. Doesn't seem like there's been a lot supporting the "driver's license" aspect of argument since back around the '30s. I'll have to take a look at those links Phage provided ... but they don't look like anything to develop a sound argument with (on face value).

-Cheers (to you and Phage)