“He was polite and cooperative and, as noted, he passed the field sobriety tests. There were no clues indicated,” Klenda said. Jamie Karasek, a deputy county district attorney in McPherson, appealed the judge’s ruling to the Kansas Court of Appeals. On Friday, the judges upheld the lower court’s decision in a 2-1 opinion.
“The factors indicating Unrau was not (driving under the influence) outweighed the factors indicating Unrau that was DUI for reasonable suspicion purposes,” wrote Judges Henry Green Jr. and Daniel Hebert.
Judge Michael Buser, who dissented, wrote that Unrau’s unsafe driving and the containers of alcohol gave Koch reasonable suspicion of DUI. “As the facts in this case prove, an intoxicated driver with a (preliminary breath test) result almost twice the legal limit may have normal coordination and balance but still exhibit diminished mental acuity leading to poor decision-making and unsafe driving.”
McPherson County Attorney Torrance Parkins said he hasn’t yet decided whether to ask the Kansas Supreme Court to review the decision. But as the author of the article points out, the Unrau case was decided on precedents established by the Kansas Supreme Court last year in the case of William Molitor, a driver who passed two field sobriety tests after hitting a curb in Wichita. He was given a breath test, narrowly failed and was arrested for driving under the influence. In a 4-3 decision, the Kansas Supreme Court reversed two lower court rulings, determining a police officer didn’t have reasonable suspicion to order a breath test for Molitor.
Also according to the article’s author, in the 16 months since, the state’s high courts have demonstrated a willingness to side with DUI defendants. As stated in this blog, and as the author of the article also indicates, in February, the Supreme Court ruled in a series of 6-1 opinions that a state law criminally punishing drivers who refuse a sobriety test is an unconstitutional violation of the Fourth Amendment protection from unreasonable search and seizure and Fourteenth Amendment due process rights. That matter is now before the U.S. Supreme Court, which will hear oral arguments Wednesday in similar cases out of North Dakota and Minnesota. Kansas Attorney General Derek Schmidt filed an amicus brief in the case, urging the nation’s high court to uphold the constitutionality of criminal punishments for refusal.
DUI is often considered an exception to one’s right to be free from unreasonable searches and seizures; but Kansas seems to be a pioneer in affording DUI suspects the same rights that all citizens should enjoy: the right to be free from unreasonable searches and seizure.
The foundation for this blog is based on an article by Justin Wingerter, who, according to the news report, can be reached at (785) 295-1100 or email@example.com. You can also follow Justin on Twitter: @JustinWingerter.