We have reviewed the Kansas Statute in a past blog about the collateral penalty of license restrictions or suspensions that can be imposed when a driver fails or refuses a request to submit to testing.  Are there other penalties for refusing to submit to a test request, however?

A controversial and relatively new Kansas Statute makes it a separate crime to refuse testing if a driver has a prior refusal or DUI conviction.  This statute is set out in KSA 8-1025.  While listing the  penalties for this statute would be too lengthy for this blog, the important thing to note is that the legislators seem to have made an attempt to impose nearly identical penalties in sentencing under this statute as a person would be sentenced to if they were actually convicted of driving under the influence in KSA 8-1567.  This seems to show a legislative intent to encourage drivers to never refuse a test request because their punishments will still be the same.

For the defense, this new statute, at the time of posting this blog, is quite contested.  Several cases have been submitted to the Courts of Appeal with issues ranging from allegations of unconstitutionality in 5th Amendment issues against self-incrimination as well as 4th Amendment issues in unreasonable searches and seizures.  Certainly, a person has a right to not have their own blood, breath, urine, or saliva seized unreasonably and this statute seems unnecessary as law enforcement officers always have the option to apply for a warrant if they greatly desire to seize a person’s blood, breath, urine, or saliva.  Overall, the list of arguments that could be made against this new statute is lengthy, but a new issue such as this is likely going to be settled by decisions in the near future.

For prosecutors, this statute gives a wider range of options to get some type of conviction against a driver who is suspected of driving under the influence.  Now, if a person refuses testing, a prosecutor could possibly get nearly the same sentence as if the person had plead or was found guilty of driving under the influence itself.  Evidence at a trial under this new statute becomes much easier in that prosecutors now would not have to fight any evidentiary issues in trying to submit testing results when they can just have testimony a person refused the test after a request.

The issues with this new statute seems to be far reaching.  We will have to keep our eye on several of the cases up for review by the higher courts.

Until next time, drive safe!