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Refusal of a PBT Declared Unconstitutional

On December 22, 2017, the Kansas Court of Appeals declared that the crime of Refusal of a Preliminary Breath Test, as set out in KSA 8-1012, was unconstitutional in a case called State of Kansas v. Michael Robinson (Case No. 116,872). A preliminary breath test, often called a PBT, is a handheld breath test device used by officers out on the road as an additional field sobriety test before a driver is placed under arrest. The PBT is different from the breath test that is given at the police station or jail after an arrest and the results of the test are generally not admissible at a trial. However, the Kansas Legislature made it a non-moving traffic infraction to refuse to take a PBT if an officer had reasonable grounds to believe that a person had been driving under the influence of alcohol in Kansas.

The Court of Appeals followed the logic of the Kansas Supreme Court in its recent decisions which struck down KSA 8-1025, which made it a crime to refuse the breath test given after a person is arrested. The appellate court held that a PBT is a search and that citizens always have a fundamental Fourth Amendment right to refuse a search. The government cannot punish a driver for invoking a constitutional right.

People currently charged with a Refusal of a PBT should be moving to have that charge dismissed. The refusal of a PBT has also been determined to be inadmissible as proof of a DUI in Kansas (State v. Wahweotten). So, the refusal of a PBT should be inadmissible in court for any reason. The result of a PBT is also inadmissible at a trial, in large part because the test is so unreliable. So, whether a person takes or refuses a PBT is not of much consequence these days.

This is an issue which the Kansas Legislature will likely address in the upcoming legislative session, as well as the other issues raised by recent appellate court decisions made in the wake of the attempt by prosecutors to make it a crime to refuse a breath test. Hopefully, the legislature will heed the warnings this time that the individual rights of citizens should be honored and they will refrain from continuing to bend the rules of the constitution of our country.


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