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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. 

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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