Kansas used to have what was called “Implied Consent” to a test of your breath, blood or urine. If you were operating a motor vehicle in the state of Kansas, you had already given your consent to have your blood, breath, or urine tested for alcohol and drugs. Then the law changed when the US Supreme Court and Kansas Supreme Court clarified that in order for a person to give constitutional consent that consent had to be “express” and not “implied”. In other words, you didn’t consent to a test simply by driving a car in Kansas.
What Constitutional Consent Means
A breath, blood or urine test is a search of a person’s body. Under the 4th Amendment to the US Constitution an officer has to have a search warrant in order to conduct a search of a person’s body. However, there are certain exceptions to that rule. One of the exceptions is “Consent”. That is, if an officer asks you for permission to search and you consent, it is legal. That consent must be knowingly, freely and intelligently given. It cannot be the product of duress or coercion. If you consent to a test and fail it by submitting a result over .08, there are driver’s license consequences and it can be used against you in court. If you do not, you face an administrative penalty, typically a license suspension of up to one year, for refusing to take the test.
How Does It Work?
Before a police officer can request that a driver take a chemical test, he or she must give him written and oral notice of several facts about alcohol testing. This is done by using a form called the DC-70. This notice will include the fact that you have no right to consult with an attorney about whether to submit to the test, and that a failure or refusal of the test can be used against you in court.
Further, the notice tells you that if you refuse the test you will lose your driving privileges for at least a year (Notably, it does not tell you that you will also be required to install an ignition interlock device). The notice will also state that citizens have the right to get additional testing done at the place of their choice after they have completed the police officer’s test or tests.
If you have been charged with a DUI in Kansas, you may recall the officer giving you a white piece of paper and asking that you read along with it while he read it to you. That was your oral and written advisories and it was given to you in writing by way of a document called the DC-70 form.
After the notice is given, the officer will then ask a person if he or she will consent to a test. The driver has no choice as to what kind of test is administered. Only the officer decides whether to request a breath test, blood test or urine test, or some combination of the three. The officer can request more than one test if he or she wants.
After the driver has submitted to the test or tests of the officer’s choice, and only if the test or tests were completed, he or she is entitled to go and get an independent test from a doctor or hospital of his or her choosing. Of course, these arrests usually happen late at night and the only medical facilities open are emergency rooms and they will likely refuse to give a test to someone in a non-emergency situation.
What You Should Do Next
If you’ve been charged with DUI in Kansas, the next step is a simple one – contact Attorney Jay Norton right away. You need the help of a skilled attorney who understands how to build a powerful defense against the state’s charges. Norton Hare can help. We work to aggressively defend the rights of those who have been charged with DUI in Johnson, Wyandotte and Douglas Counties, and we’ll defend you too. Contact us today.