Kansas we have a problem. The new DUI law. Now I know what your thinking…Drinking and driving is bad and we shouldn’t encourage it. I agree. But this is not the way. Right now if you refuse a breath test at a traffic stop there are penalties. Many municipalities have made it a city code violation to refuse a test at the car and they have made it punishable by a fine. Also, a refusal to take an intoxilyzer after arrested will have serious implications on your driver’s license. But this law goes further, it criminalizes a refusal to take the intoxilyzer and make is have a jail penalty just like a DUI conviction.
That is bad news and let me tell you why. It’s a thing called the U.S. Constitution.
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
I believe that this new law runs contrary to your constitutional rights. Primarily the fifth amendment as it basically is forcing you to provide evidence against yourself in a criminal case. It has been a long held maxim that you don’t have to cooperate with an investigation that is trying to put you in jail. This new law is requiring you to do just that. If you take the test you are providing evidence that you have violated the law. The prosecutors and legislators are eroding your constitutionally protected rights. This law will surely be challenged on its constitutionality. If you find yourself in a situation where you need a DUI lawyer give us a call and we can fight for your rights. Here is the article that inspired this post.
New law in Kansas targets repeat drunken drivers
By Tom Izzo
“Professional drunks,” Johnson County District Attorney Steve Howe calls drivers who habitually consume alcohol before getting behind the wheel. And a new law, which Howe pushed, directly targets them. Beginning July 1, Kansas will become one of a handful of states that mandate jail time for repeat offenders who refuse breath or blood tests after being stopped for suspicion of driving drunk. The law was designed to correct a common scenario involving test refusals by motorists who knew their way around the legal system and thus refused the tests, leaving prosecutors little evidence for convictions.
Refusal rates in Johnson County have been climbing steadily and this year are running close to 30 percent, Howe said. “These people pose a threat,” Howe said. “We need to hold them accountable.” First-time offenders are exempted from the new law. Currently in Kansas, and most other states, refusing the tests can result in a driver’s license being suspended. But that fails to deter many chronic offenders who continue to drive with or without a license, Howe said. The new law carries the same penalties as a DUI conviction — up to a year in jail for those with multiple convictions — and takes away the incentive to refuse the tests, Howe said.
But critics say it will cost the state hundreds of thousands of dollars in increased court and incarceration costs. And they maintain it is rife with potential constitutional violations that likely will bring prolonged court challenges. “There’s going to be a non-stop parade of litigation while this law is in effect,” said a veteran criminal defense lawyer in Kansas. Yet one of the selling points that prosecutors used to get the law passed was that it would cut down on the number of DUI cases being taken to trial, he said. The law will make criminals of people who only are suspected of driving under the influence and want to exercise their right against self-incrimination, Norton said. It also takes away their right to remain silent or to be free from warrantless searches. “It doesn’t do anything to curb drunk driving or alcohol-related crashes,” Norton said. “It only makes it easier to convict people they suspect.”
However, those kinds of constitutional questions have been raised in other states, and the laws have been upheld as constitutional, according to Bill Lemons, traffic safety resource prosecutor for the Minnesota County Attorneys Association. Minnesota implemented a refusal law in 1988 and expanded it to include first-time offenders in 1993, Lemons said. It has resulted in a drastic reduction in the percentage of DUI stops that result in test refusals, he said. Howe hopes the law will have the same effect here.
Even before this law, Kansas was one of the top states in the country in implementing laws to counter drunken driving, according to data compiled by Mothers Against Drunk Driving. Under MADD’s rating system, Kansas received five stars, its top mark. Only four other states rated that highly. Missouri, which considered but did not pass a similar refusal law in 2010, rated three stars from MADD. “It (Kansas) is near the top as far as having the toughest penalties on the books,” said Frank Harris, MADD’s state legislative affairs manager.
Harris called the new Kansas law a “step in the right direction.” “Refusal is a problem across the country,” he said. “It allows offenders to elude justice.” Some other jurisdictions have conducted “no refusal” programs, often around holiday weekends, according to Harris. Coordinating with local prosecutors and judges, police confronted with a refusal seek a search warrant to obtain the breath or blood sample. The threat of the search warrant is often enough to convince the suspect to voluntarily submit to the testing, he said. Howe said that kind of approach would be “unworkable” here. It would necessitate having judges on call around the clock and would “flood” hospitals with DUI suspects being brought in for blood draws, he said. One question yet to be answered nationally is what effect laws like the one passed in Kansas have on DUI-related crash rates. No studies have been done, said Robert Voas, senior research scientist for the Maryland-based Alcohol, Policy and Safety Research Center. A study he co-authored in 2009 showed that people who refused testing were less likely to be convicted, and more likely to be recidivist drunken drivers.
Continuing to allow drunken drivers to evade prosecution by refusing tests is simply rewarding bad and dangerous behavior, Howe believes.
“We’re gambling with people’s lives,” he said.
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