Last Friday the Kansas Supreme Court overturned a law that imposes criminal penalties on drunk driving suspects who refuse to undergo breath or blood tests. "Once a suspect withdraws consent…a search based on that consent cannot proceed," says the 6-to-1 ruling in State v. Ryce. "By criminally punishing a driver's withdrawal of consent, [the statute] infringes on fundamental rights arising under the Fourth Amendment."
The case involved David Lee Ryce, who was stopped in December 2012 after a Sedgwick County sheriff's deputy saw him driving in reverse, then forward but on the wrong side of the street. The deputy reported that Ryce smelled of alcohol, his speech was slow and slurred, he admitted having "a few drinks," and he performed poorly on roadside sobriety tests. Ryce, who had four prior DUI convictions, was arrested and taken to the county jail, where he was read a legally prescribed warning that if he did not submit to a breath test he could lose his driver's license and face criminal charges. He nevertheless declined to cooperate and was charged with test refusal, a felony, as well as three misdemeanors (driving with a suspended license, driving without a proper tag, and improper backing).
Ryce argued that the test refusal charge violated his Fourth Amendment right to be free of unreasonable searches and seizures, and the Kansas Supreme Court agreed. In the absence of consent or a special justification, searches generally require a warrant. That is why every state has an "implied consent" law saying that drivers, in exchange for the "privilege" of operating motor vehicles on public roads, agree to be tested should they be arrested for DUI. If they refuse to cooperate with alcohol testing, they can lose their licenses through an administrative process. Kansas is (or was) one of 13 states that also treat test refusal as a crime.
The U.S. Supreme Court has already agreed to decide, in three consolidated cases from Minnesota and North Dakota, whether that policy is consistent with the Fourth Amendment. The top courts in those two states said it was, based on two different rationales. The Minnesota Supreme Court said alcohol testing qualifies as a "search incident to arrest," which does not require a warrant, while the North Dakota Supreme Court said consent to testing is not coerced merely because withholding it can send you to jail. The Kansas Supreme Court, by contrast, concluded that implied consent to testing under state law is not irrevocable, that treating withdrawal of consent as a crime "violates the fundamental right to be free from an unreasonable search," and that such a policy cannot survive "strict scrutiny," which requires that it be narrowly tailored to serve a compelling government interest.
In addition to rejecting the test refusal charge against Ryce, the court applied the same analysis to three other DUI cases, two of which involved dismissal of test refusal charges and one of which involved suppression of breath test results. "The Supreme Court has affirmed the right of the individual citizen to be free from forced searches by the government," a DUI defense attorney told The Kansas City Star. A Mothers Against Drunk Driving board member was less enthusiastic. "MADD's position is that driving is a privilege and not a right," he said. "We support penalties for refusing to take chemical tests. We think law enforcement members need to have all the tools at their disposal to keep our roads safe from drunken drivers who kill about 10,000 people a year." A local prosecutor likewise told the paper "I'm confident the U.S. Supreme Court will find [criminal penalties for test refusal] lawful," because "it's a big public safety issue."
The implication is that any policy aimed at discouraging drunk driving is justified by its lifesaving potential, whether or not it's consistent with the Constitution. That attitude is hard to fathom, especially since complying with the Constitution in this case is not very hard. If police have probable cause for a DUI arrest, they have probable cause for a warrant to test the arrestee's breath or blood. Given how quickly warrants can be obtained nowadays, the only excuse for not doing so in a typical DUI case is sheer laziness.