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Kansas Supreme Court Surprises Us By Saying It's Illegal to Punish a Refusal to Take a Breath Test

Posted by Tom Hudson | Feb 26, 2017 | 0 Comments

There has been a lot of fallout from the recent decision by the U.S. Supreme Court that a blood test is a "search" under the "Search and Seizure Clause" of the Fourth Amendment. But nothing has been as unexpected as a decision on Friday February 24 by the Supreme Court of the State of Kansas.  

The Court declared that the state could not make it a crime to refuse a breath test.

The Kansas Court's reasoning was simple.  A breath test is a "search" under the Fourth Amendment. The state cannot penalize you for invoking your constitutional right to say "no" to a search. Therefore, the state can't make it a crime to refuse a breath test.  

Essentially, the Court said that, no matter how well-meaning the state government, the rights of privacy and to be free from unreasonable searches trump the interests of law enforcement. Several cases have been appealed to the U.S. Supreme Court on this exact topic, but for now, in the State of Kansas, no driver can be forced to give a breath sample under threat of criminal prosecution. 

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About the Author

Tom Hudson

Known nationwide as a leading DUI defense lawyer, Tom has tried over 350 jury trials, including numerous death penalty cases. He now limits his criminal practice to DUI defense. His civil practice is devoted to getting fair compensation for the victims of negligence. Tom has attained multiple verdicts and settlements in excess of $1 million, and is a Life Member of the Multi-Million Dollar Advocates Forum. In 2008, Tom Hudson passed the National Board Certification Test for DUI Attorneys in Honolulu, Hawaii. NOTE: The State of Florida does not yet recognize DUI defense as a Specialty.

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Board Certification in DUI Defense

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Tom Hudson passed the National Board Certification Examination (written and oral) in Honolulu in 2008, and was recertified in 2013. He was one of the first 50 lawyers granted national board certification in DUI Defense, and is nationally recognized as an authority in DUI law.

Why We're Different

Board Certification as a DUI Specialist by the National College for DUI Defense. Formal NHTSA Certification as an Instructor of the Standardized Field Sobriety Tests given by police in DUI cases. Formal training as a NHTSA Drug Recognition Evaluator. ("Drug Evaluation & Classification") Formal training to operate the Intoxilyzer 8000, Florida's official breath test instrument. Extensive experience in teaching other attorneys how to handle DUI cases. Hundreds of jury trials both as defense lawyer and as prosecutor. Florida's State Delegate to the National College for DUI Defense.