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Kansas Changes the Penalty for Drivers Who Refuse a Sobriety Test

Under a new state law, police can't ticket motorists suspected of driving under the influence of drugs or alcohol for refusing an officer's request to take a field sobriety test.

By Matthew Kelly

Kansas drivers can no longer be charged with a crime for refusing a sobriety test, under a July 1 change in state law.

But be prepared to lose your license if you don't take the test.

Under a new state law, police can't ticket motorists suspected of driving under the influence of drugs or alcohol for refusing an officer's request to take a field sobriety test.

But refusal to comply comes with a year-long license suspension. That's as long as the maximum suspension for failing a breathalyzer or blood test.

Drivers who refuse to be tested can still be prosecuted for a DUI based on other evidence.

The decision to strike the law designating a separate violation comes as state appellate courts and the U.S. Supreme Court have reversed course on whether motorists driving on streets and highways give implied consent to sobriety tests.

In Kansas, the court rulings meant officers could no longer cite drivers for refusing the tests, but the law itself hadn't caught up.

"The court interpretations have continued to change, so sometimes, the Legislature feels like it has been chasing a moving target, said John Carmichael, D-Wichita, ranking minority member on the Kansas House Judiciary Committee.

Carmichael said the Kansas DUI Judicial Council, made up of lawyers and other experts on the topic, is still "in the process of working through a new overall scheme for DUI laws."

"In the meantime, they felt like there were some immediate changes that needed to be made," Carmichael said.

Ed Klumpp is a DUI Judicial Council member and a lobbyist for several Kansas law enforcement associations. He said the discrepancy between statute and precedent posed an issue for police officers.

"The officer relies on looking at the statute. They're not versed in looking at case law, so we want what they reference to be as accurate as they can," Klumpp said.

Carmichael said suspensions for drivers who refuse to be tested will likely be more severe than for those who take the test and fail.

"If you take the test and you fail the test, separate and apart from any criminal violation, your license will most likely be suspended for a minimum of 30 days," Carmichael said. "After the end of those 30 days, you may be able to obtain a restricted driver's license for driving to and from work or other matters.

"If you refuse the test and don't take it at all, the chances are very good that whether you're found guilty of DUI or not, your driver's license will still be suspended for a period of one year, and you probably can't even get the restricted license," Carmichael said.

Klumpp acknowledged that there may be some DUI cases that police officers won't be able to make now.

"There was a benefit to having that for the test refusals simply because it encouraged more people to take the test," he said of the compulsory testing. "Let's face it -- that's what it was designed to do."

He predicted that it wouldn't be a major setback. Vice Chair of the House Judiciary Committee Bradley Ralph, R-Dodge City, agreed.

"In the long run, I think maybe this makes it a little more difficult for our law enforcement officers, but the job they do out there -- I'm not concerned that our highways or streets are going to be any less safe based on the officers' ability to get drunk drivers off the road," Ralph said.

(c)2019 The Wichita Eagle (Wichita, Kan.)

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