Criminalizing Breath Refusals

Criminalizing Breath Refusals

Posted By Kansas DUI Attorney || 20-Apr-2012

On March 16, 2012, Kansas Senate Bill 453 was amended to make the refusal of a person to submit to a blood, breath or urine test at the demand of law enforcement a crime. By March 27, it had passed in the Senate and was on to the Kansas House for passage into law. With hardly any debate, virtually no public comment or hearing, and with little to no consideration of countervailing arguments the Kansas Legislature bent to the will of law enforcement and prosecutors and took another giant leap for big government and dealt another devastating blow to individual integrity, rights and liberty, at great expense to the taxpayer.

Criminalizing the refusal to submit to the testing of your body's fluids upon the demand of the constabulary is absolutely wrong for many reasons, but here are three easy and common sense reasons:

First, this law creating a new crime and a new class of criminals is unnecessary. People who refuse a breath, blood or urine test in a DUI already have that fact used against them at trial and prosecutors can argue that a refusal of a test is proof that the person knew he or she was guilty. People are convicted every day of DUI despite the lack of a breath or blood test. Refusing a test already results in stiffer suspensions and sanctions against a person's driver's license. This new law will do nothing to make the streets of Kansas safer. Making refusing a test a crime will do nothing to prevent people from drinking and driving. Once again, the legislature is attempting to treat the problem after the act has already occurred, as opposed to preventing it in the first place. We don't need a new crime for an old problem.

Second, the law overwhelming increases the odds that we make criminals of people who have done nothing wrong. A person who in good faith attempts to take a test but cannot complete it due to a medical condition like asthma or emphysema would be guilty of this crime. A person who was not able to urinate on command could be liable for this offense despite a desire to comply.

A person who is deaf or speaks a foreign language and is not able to understand what is being demanded of him or her will still be convicted of the crime of refusing even if he or she truly did not understand the ramifications of taking or refusing a test, or is unable to articulate his or her consent to a test. There are certain religions that prohibit or discourage consenting to procedures involving blood. For instance, Jehovah's Witnesses believe that "blood represents life and is sacred to God. It is reserved for only one special use, the atonement for sins." That is why Jehovah's Witnesses will not permit blood transfusions. A Jehovah's Witness who violates this prohibition is automatically disassociated from the church. Christian Scientists also have a prohibition on medical intervention in the body, including blood products or blood transfusion. Under the proposed law, persons who refuse a blood test due to a religious belief, even if they agreed to a breath or urine test in the alternative, would be guilty of a crime. This is unfair.

Third, in a time when Kansas has to shut its courts down due to a lack of funds and can't provide other basic services, we cannot afford these new criminals. This law requires mandatory incarceration of every person convicted of refusing a test. The conservative estimate for jailing all of these people, as estimated by Senator Jeff King, is 2 million additional dollars. There is no provision for funding this new crime, so where is that money going to come from? The law is unnecessary, expensive and is an expansion of big governmental power at the expense of the individual citizens of Kansas.

In America, liberty should be the rule and governmental power the exception. The citizens of Kansas should urge Governor Sam Brownback not to sign this into law.

Categories: DUI