Drunk driving

Top Kansas Court Overturns Criminal Penalties for Drivers Who Refuse Alcohol Testing

The 6-to-1 ruling says it's unconstitutional to punish people for withdrawing "implied consent."

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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.

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  1. while the North Dakota Supreme Court said consent to testing is not coerced merely because withholding it can send you to jail

    I hoped they stretched before taking that leap.

    1. Taxes are voluntary, after all.

      1. Hey, if you don’t want to pay them you’re free to spend the weekend with the pain monster.

    2. Hmm, by that logic consent to giving the mugger my wallet is not coerced merely because withholding it can result in me stabbed or shot.

    3. I mean, you’re basically just sitting in a room for a while, what’s so coercive about that?

      *sarcasm*

    4. Ends something something means

    5. while the North Dakota Supreme Court said consent to testing is not coerced merely because withholding it can send you to jail

      And the local mafia said consent to paying “dues” is not coerced merely because withholding it will likely cause your business to go up in flames, your kneecaps to be broken, and you to die from acute lead poisoning if you continue to decline their generous offer.

  2. 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.

    I’m curious as to how many people are killed by government every year. The answer is probably “Fuck you, do what makes me feel important”.

    1. That would be an interesting number to calculate. Just the drug war alone–between shootings over profits that would exist if drugs were legal, to the ODs and tainted drugs, to the murders committed by the police and the people who die or are killed in prison…

      1. Like there will ever be an honest accounting of its carnage.

        1. I think there will be eventually. In a couple of centuries, the DEA will be mentioned in the same breath as the SS.

  3. and was charged with test refusal, a felony,

    Fuck you.

    1. Yep. This pretty much sums up everything that’s wrong with the system.

      1. Oh come now. The system is WAY more fucked up than that. Give it some credit!

  4. “I’m confident the U.S. Supreme Court will find [criminal penalties for test refusal] lawful,” because “it’s a big public safety issue.”

    Because of the 4th Amendment’s public safety cause.

  5. Wouldn’t submitting to a breath test amount to incriminating yourself? Penalizing you for refusing to do so would also be a 5th amendment violation…right?

    1. I was going to say that I think this is more akin to a search of someone’s person. In which case, I agree with Jacob that it should be easy to get a warrant for a breath test.

      However, I started thinking that maybe it isn’t analogous. You have to give consent to a search (at least if we actually followed the Constitution any more), unless there is a warrant. But, in any case you don’t have to actively assist them in the search. You just can’t interfere.

      Have to think more about this. Not that it matters what the hell I think about it. The well known FYTW clause in Section “Shut Up and Do As Your Told” in Article “We Can do Anything in the Name of Public Safety” of the Constitution is pretty clear.

  6. A Mothers Against Drunk Driving board member was less enthusiastic.

    Fuck these guys too. I have a good friend who was busted for DUI. Part of the “rehabilitation” process was to go through a class with MADD. The attitude of the people who ran the class was crap, their use of statistics is bullshit, and they are essentially moral thugs. Most of the people who run the classes have lost family members to drunk drivers. While I’m incredibly sympathetic to their loss, allowing them to “instruct” people with DUI convictions is crap. Classic case of a group starting out with noble intentions morphing into something far worse.

    1. Obligatory:

      *sigh*

      You know who else started out with noble intentions and morphed into something far worse?

      1. Donald Trump?

        1. The H&R commentariat.

          C’mon, that was a gimme.

          1. I have always seen the ugliness, even when it wore a polite mask.

            1. I think you spelled ‘been’ wrong.

    2. Part of the “rehabilitation” process was to go through a class with MADD

      Forced association is much more popular than the free variety. Government forced re-education at the behest of a legally unconcerned third party? Maybe BLM can get in on this gig too?

    3. I agree. Fuck MADD

  7. “MADD’s position is that driving is a privilege and not a right”

    How nice. My position is that MADD’s ability to communicate its position is a privilege and not a right. Guess what? We’re both wrong.

    1. I would have to hear both sides.

      Certainly a person has a right to free movement and to use the roads to do so, but to actually operate a vehicle, I am not so sure.

      1. What about shoes…is wearing shoes okay?

        1. *looks at boots*

          Yes, wearing shoes is ok. It has no effect on other’s movement or wearing of shoes.

          I would like to hear the best arguments of both sides.

          1. If freedom of movement is a right, then there is a right to the means to exercise your freedom of movement. Just like, if self-defense is a right, then there is a right to the means to exercise your right to self-defense.

            These rights cannot be limited in the absence of due process.

            The state has no more authority to require you to have a license to drive than it has to require you to have a license to own a gun.

            Try that for a start.

          2. There is only one right, the right to not be aggressed against. All other negative “rights” stem from this (also called “NAP”).

            Ergo, no-one has any say in anything you do unless it’s aggression.

      2. I’d say you have a right to operate a motor vehicle. As with other rights, the right can be restricted for some period of time if you are convicted of a crime. Just as your freedom of movement is restricted if you are sentenced to prison for a crime. The question, it seems to me, is what crimes justify such restrictions. I don’t think simply having a certain amount of alcohol in your blood does.

        1. The question, it seems to me, is what crimes justify such restrictions. I don’t think simply having a certain amount of alcohol in your blood does.

          Of course, the idea that refusing to provide evidence against yourself is a crime is another problem.

          Search warrants can be served and fulfilled without the accused’s affirmative assistance. Anything that requires the accused to provide assistance in their own prosecution should be a per se violation of due process. Providing a password, or even pressing your finger on a screen, etc.

    2. I also tend to hate the expression “privilege, not a right”. As free citizens in a (supposedly) constitutional republic, pretty much anything we want to do is a right, provided it doesn’t interfere with another citizen’s rights to do the same.

      This one I do struggle with. As long as the vehicle is on private property (which in Libertopia, would include the roads) then I can do whatever I want with it, as long as the owner of that property agrees. So part of the problem comes from the roads being “public”, and therefore who is the owner?

      In this particular case, though my own state supreme court got it right. I have mixed feelings about automatically suspending one’s license for refusal to take the test, but certainly making refusal a crime in and of itself should be blatantly unconstitutional.

    3. even if driving is a privilege, this is about the CRIMINAL charge for refusing to voluntarily have a BAC test done. they can still revoke you license. they can still get a warrant for it. why does there have to be a law that refusing is a felony?

  8. 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.

    Seriously? You think laziness is the only excuse when only a couple of sentences prior you suggest that they’re finding any old flimsy excuse to by-pass the Constitution and the whole “finding any old flimsy excuse to bypass the Constitution” is unfathomable? They desire nothing more than to see to it that the Constitution is no impediment to their being able to do whatever the hell they want – and the “they” may be different groups at different times but “they” is one whole hell of a lot of people. Whether it’s the ones who think the Second gets in the way of reasonable common-sense gun confiscation or the First doesn’t cover “hate speech” or the Fourth doesn’t cover eye-rapey eye-raping eye-rapists with their rapey raping rapist eyes or the general welfare clause covers sugary soft drink bans – they all want the power to say the Constitution doesn’t apply in whatever cases they say it doesn’t apply.

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  10. In Ohio it’s 6 months suspension for refusal. Interesting that everytime you see a story about a cop or judge or a lawyer stopped for dwi they ALWAYS refuse the test.

    1. From my understanding, every lawyer recommends you refuse the test in Ohio. If you take the test, and are over .08, you’re guilty. That’s it… no argument allowed, and you get at least a six month suspension anyway. If you don’t take the test, you get the suspension, but you may be able to avoid the OVI charge.

      1. Yes, that’s what it meant by “per se limit”.

    2. Laws for thee but not for me…

  11. Implied consent?

    I thought all consent was affirmative.

    Plus, are not drunk people incapable of consent anyway? All roadside alcohol tests should be thrown out because drunk people can not consent.

    1. These people literally do not have the same definition of consent as you or I.

      Consent to them means saying yes to doing whatever they demand, or else.

    2. A thirteen-year old girl wants an abortion. Can she give informed consent to the procedure? Why are there laws in some states requiring the custodial guardians not be informed in this one particular case? Is not a pregnant thirteen-year old girl prima facie evidence that the crime of statutory rape has occured and are not doctors mandatory reporters? Why is it that a thirteen-year old is legally incapable of giving consent to having sex (or just about anything requiring a contract) but not to giving consent to an abortion?

  12. 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.”

    Unnamed local prosecutor is prescient. The gods of Stare Decisis demand just such an outcome, despite how plainly out of step it is with the Constitution as written.

  13. Slan da man is not gonna like that

    http://www.Anon-Net.tk

  14. The establishment (NTSB) pushing their attack on the dinner crowd in the US police state..
    The National Transportation Safety Board wants to decrease the legal driving limit to one drink, lowering the legal limit on blood-alcohol content to 0.05 “or even lower.”

    The agency released its “most wanted list” on Wednesday, a laundry list of policies it would like implemented nationally. The list includes recommendations to reduce the current 0.08 blood alcohol content limit and outlaw all cell phone use while driving, even hands-free technology.

    http://freebeacon.com/issues/f…..one-drink/

    1. I tend to wonder as to the following. Who died, leaving these alphabet agencies the boss of so many things?

  15. And the police are, among other things, sometimes lazy too. Interestingly, the citizen, in this case, seemed a poor example for an appeals case, though I’m not learned in the law.

  16. Good. I hope it sets a precedent.

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