Last week the Kansas Supreme Court released an opinion in a case I have been fighting for over 4 years. The opinion, State v. May, can be found here. My client was arrested in 2007. She blew into a breath testing device but the device determined that she had not blown enough air into it to complete the breath test, although it did report a breath test result of the part of the sample it did test. This is called a “deficient sample” by the Intoxilyzer 8000, and is considered a “refusal” of a breath test under Kansas DUI laws, although the machine also displays the highest breath test result it was able to get. The prosecutor wanted to introduce both the “refusal” to blow hard enough into the machine, as well as introduce the result of the partial breath test sample, which they alleged was over the legal limit. I filed a motion in front of the trial court and had that evidence suppressed. The prosecutor appealed the judge’s ruling to the Court of Appeals. The case was briefed and argued to the Court of Appeals and the judge’s ruling keeping that evidence out was upheld by the Court of Appeals. The prosecutor appealed to the Kansas Supreme Court and, again, I had to go and argue the case. Finally, the Kansas Supreme Court also agreed with the trial court judge and upheld the suppression of the breath test result and “refusal”. This marks a somewhat significant change to Kansas DUI law in that people who are unable or unwilling to complete the breath test on an Intoxilyzer by blowing a sufficient amount of air into it are now allowed a second chance at the test if they request one after an initial “refusal” by way of a deficient sample.