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Refusing Breathalyzer Legal in Kansas - KOAM TV 7

Refusing Breathalyzer Legal in Kansas

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Southeast Kansas -

There are several tell-tale signs of a drunk driver.

"Any slurred speech, any coordination issues, obviously if the were driving erratically," Crawford County Attorney Michael Gayoso said. And for him it's also evidence which he and other prosecutors across Kansas may rely much heavier on in the future.

Previously, if a driver in Kansas suspected of DUI refused to take part in a breath, blood or urine test, the penalty was the same as being convicted of DUI. The Kansas Supreme Court, in two rulings (State Vs Ryce, State Vs Nece), determined that to be coercive and unconstitutional. Which has Gayoso uncertain about the future of several DUI cases.

"It will affect the cases," Gayoso said. "What will determine.. the number of cases it will affect is what other evidence the state may have."

Defense lawyers we talked to said this would be a major blow to prosecutors. Former Cherokee County Attorney Melanie Bingham, who still practices as a private attorney, said, "The breathalyzer is the key pieces of evidence." Going as far to add "this changes everything".

Friday, Kansas Attorney General Derek Schmidt asked the Kansas Supreme Court to delay any decisions on DUI-related statutes until the U.S. Supreme Court rules on similar case this Spring. Schmidt released a statement saying, in part, "There is no guarantee the U.S. Supreme Court's decision... will squarely resolve the Kansas matter. But that does appear to be a reasonably likely outcome."

Police will still be able to arrest a drunk driver refusing to give a breath test if the officer feels there is probable cause.

"It would create uncertainty for the courts, our judges, for the prosecutors and attorneys,"  Gayoso said. 

The Kansas Supreme Court's ruling does not affect anyone convicted for a first-time DUI. Nor does it affect the prosecution or a test if it was a second, or subsequent DUI, and the prior DUI was before July 1st of 2001.

******

The Kansas chapter of Mothers Against Drunk Driving released the following statement:

"MADD Kansas is disappointed in the ruling.  We believe this will lead to more fatalities and injuries on Kansas roadways.  Driving is a privilege, not a right. The repeat offenders who were subjected to this law are the most dangerous drivers on our roadways.  MADD supports penalties for refusing to submit to a chemical test following a suspected drunk driving incident. Law enforcement needs to have all tools at their disposal to keep our roads safe from drunk driving, which kills 10,000 people every year.  MADD strongly supports these laws and encourages Kansas to improve their interlock refusal law and to increase DUI test refusal penalties. 

Statistic: Nationally, 20 percent of arrested drunk drivers refuse a chemical test."

- Chris MannMADD Kansas

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