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RECENT KANSAS COURT DECISIONS MAY RESULT IN DUI NO LONGER BEING AN EXCEPTION TO THE FOURTH AMENDMENT
DUI MAY NO LONGER BE AN EXCEPTION TO THE FOURTH AMENDMENT IF KANSAS’S RULINGS ARE AFFIRMED BY THE SUPREME COURT OF THE UNITED STATES
In February of this year the Kansas State Supreme Court ruled that Kansans who refuse to submit to a breath or blood test in DUI investigations cannot be criminally prosecuted for that refusal. The court found unconstitutional a state law making it a crime to refuse such a test when no court-ordered warrant exists. In its 6-1 ruling, the Kansas State Supreme Court found that the tests were in essence searches and the law punished people for exercising their constitutional right to be free from unreasonable searches and seizures. This was a very significant decision in overcoming the fact that the crime of drunk driving is commonly referred as an exception to the Fourth Amendment.
Now the Kansas Court of Appeals has ruled that bloodshot eyes and open containers of alcohol are not enough evidence for a police officer to order a breath test. According to this news report, this is the latest in a series of split opinions by the state’s high courts expanding the rights of drivers while restricting police and prosecutors according to this article, which is a good point. A driver, even those suspected of DUI, is afforded certain rights, such as the right to be free from unreasonable searches and seizures – DUI should not be an exception to those rights.
In the case, Officer Steve Koch was parked in his patrol car during the overnight hours of August 23, 2014, when Darcy Unrau’s pickup truck sped past him at 85 mph in a 55-mph zone. After finding a holstered gun in Unrau’s truck, Koch asked him to step out of the vehicle. Unrau had no difficulty walking, (unsteady gait), and his speech wasn’t slurred (no slurred speech), according to Koch in the referenced article. When asked if he had consumed any alcohol, Unrau said he “had one or two maybe.” Koch later testified that he smelled alcohol in the vehicle and noticed Unrau’s eyes were watery, glazed and bloodshot according to the article.
Also according to the article, as a passenger in the vehicle opened the glovebox to grab Unrau’s insurance card, a full beer can rolled out. Unrau said “there shouldn’t be any” more alcohol in the vehicle but when a second glovebox was opened, two more cans rolled out, one of which was open. Koch also found a quarter-full bottle of peach margarita behind the driver’s seat, he said.
The article further indicated that Unrau agreed to perform field sobriety tests, which included the Walk & Turn Test and the One Leg Stand Test and did so without any sign of inebriation the article indicated. After being asked by Koch, Unrau also agreed to a preliminary breath test, which revealed a blood-alcohol content of .155 percent, nearly twice the legal limit of .08 percent according to the article.
Unrau was arrested and charged with driving under the influence, possession of a firearm while under the influence of alcohol, transporting an open container and speeding.
According to the article, as the case headed to trial, Unrau’s attorneys made a motion to suppress the breath test, arguing Koch did not have the reasonable suspicion required to request it. The McPherson County District Court Judge, John Klenda, agreed.
“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 firstname.lastname@example.org. You can also follow Justin on Twitter: @JustinWingerter.
Blog Entry: Kansas DUI Fourth Amendment (Peter F. Iocona, Attorney at Law)