Kansas: Supreme Court confirms drivers can’t be prosecuted for a DUI test without a warrant Further to a 6-1 ruling it was found by the court that the DUI test was no more than a search. Defense attorneys have put forward that the DUI refusal law has been somewhat malleable. Drivers often induced in to a guilty plea to avoid the charge of a DUI test refusal. Any Kansas driver refusing to yield to a DUI test (breath or blood) can’t be prosecuted (for refusing). This in accordance with the State ruling on Friday. The court deemed a state law unconstitutional criminalizing a refusal when no warrant (court ordered) exists. The 6-1 ruling found the tests were no more than searches. Driver’s were being penalised was unconstitutional i.e. a right to be free of unreasonable searches and seizures.

Under existing Kansas law by operating a motor vehicle (in state boundary) gave implied consent to committing to such a test. However the ruling confirmed that implied consent isn’t irrevocable. Further that the withdrawal of consent can’t be criminally punished. The court ruled when express or implied consent is withdrawn under statute a search can not proceed. The “compelling interest” of the State to prosecute and combat DUI offenders should not outweigh fundamental rights of the individual, as the constitution confirms.

The DUI test refusal law was classed as a misdemeanor or a felony. However this depended on the number of times a driver or individual had violated it. In certain situations the law can be applied constitutionally. The ruling may well effect the prosecution of DUI offenders who are habitual offenders. The U.S. Supreme Court is now considering cases around the same issue from other States. Kansas may seek to join forces for the action citing a public safety issue. A consultation with the Kansas Attorney General will determine how to move forward with pending cases. Consenting to a search faced with possible criminal prosecution was seen as “coercive” by the court. Thereafter rendering consent involuntary.

Drunk drivers kill approximately 10,000 people every year. Around 20% refuse a DUI test and there are concerns that there is now a further loophole. As to whether States can criminalize refusals The U.S. Supreme Court will decide soon. Challengers put forward that searches without a warrant are justified in extraordinary circumstances. In 2013 the Supreme Court decided that law enforcement must usually obtain a search warrant. That exceptional circumstances should be on a case-by-case basis. One of the defining moments over warrantless searches was the McNeely case from 2013.

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