8-1001 Implied Consent

Kansas Statute 8-1001 "Implied Consent"

On July 1, 2012, numerous laws regarding drunk driving were changed. The following is part of those changes for K.S.A. 8-1001

Sec. 12. K.S.A. 2011 Supp. 8-1001 is hereby amended to read as

follows: 8-1001. (a) Any person who operates or attempts to operate a

vehicle within this state is deemed to have given consent, subject to the

provisions of this act, to submit to one or more tests of the person's blood,

breath, urine or other bodily substance to determine the presence of

alcohol or drugs. The testing deemed consented to herein shall include

all quantitative and qualitative tests for alcohol and drugs. A person who

is dead or unconscious shall be deemed not to have withdrawn the per-

son's consent to such test or tests, which shall be administered in the

manner provided by this section.

(b) A law enforcement officer shall request a person to submit to a

test or tests deemed consented to under subsection (a): (1) If the officer

has reasonable grounds to believe the person was operating or attempting

to operate a vehicle while under the influence of alcohol or drugs, or

both, or to believe that the person was driving a commercial motor ve-

hicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having

alcohol or other drugs in such person's system, or was under the age of

21 years while having alcohol or other drugs in such person's system; and

one of the following conditions exists: (A) The person has been arrested

or otherwise taken into custody for any offense involving operation or

attempted operation of a vehicle while under the influence of alcohol or

drugs, or both, or for a violation of K.S.A. 8-1567a, and amendments

thereto, or involving driving a commercial motor vehicle, as defined in

K.S.A. 8-2,128, and amendments thereto, while having alcohol or other

drugs in such person's system, in violation of a state statute or a city

ordinance; or (B) the person has been involved in a vehicle accident or

collision resulting in property damage or personal injury other than se-

rious injury; or (2) if the person was operating or attempting to operate

a vehicle and such vehicle has been involved in an accident or collision

resulting in serious injury or death of any person and the operator could

be cited for any traffic offense, as defined in K.S.A. 8-2117, and amend-

ments thereto. The traffic offense violation shall constitute probable cause

for purposes of paragraph (2). The test or tests under paragraph (2) shall

not be required if a law enforcement officer has reasonable grounds to

believe the actions of the operator did not contribute to the accident or

collision. The law enforcement officer directing administration of the test

or tests may act on personal knowledge or on the basis of the collective

information available to law enforcement officers involved in the accident

investigation or arrest.

(c) If a law enforcement officer requests a person to submit to a test

of blood under this section, the withdrawal of blood at the direction of

the officer may be performed only by: (1) A person licensed to practice

medicine and surgery, licensed as a physician's assistant, or a person act-

ing under the direction of any such licensed person; (2) a registered nurse

or a licensed practical nurse; (3) any qualified medical technician, includ-

ing, but not limited to, an emergency medical technician-intermediate,

mobile intensive care technician, an emergency medical technician-in-

termediate defibrillator, an advanced emergency medical technician or a

paramedic, as those terms are defined in K.S.A. 65-6112, and amend-

ments thereto, authorized by medical protocol; or (4) a phlebotomist.

(d) A law enforcement officer may direct a medical professional de-

scribed in this section to draw a sample of blood from a person:

(1) If the person has given consent and meets the requirements of

subsection (b);

(2) if medically unable to consent, if the person meets the require-

ments of paragraph (2) of subsection (b); or

(3) if the person refuses to submit to and complete a test, if the

person meets the requirements of paragraph (2) of subsection (b).

(e) When so directed by a law enforcement officer through a written

statement, the medical professional shall withdraw the sample as soon as

practical and shall deliver the sample to the law enforcement officer or

another law enforcement officer as directed by the requesting law en-

forcement officer as soon as practical, provided the collection of the sam-

ple does not jeopardize the person's life, cause serious injury to the person

or seriously impede the person's medical assessment, care or treatment.

The medical professional authorized herein to withdraw the blood and

the medical care facility where the blood is drawn may act on good faith

that the requirements have been met for directing the withdrawing of

blood once presented with the written statement provided for under this

subsection. The medical professional shall not require the person to sign

any additional consent or waiver form. In such a case, the person au-

thorized to withdraw blood and the medical care facility shall not be liable

in any action alleging lack of consent or lack of informed consent.

(f) Such sample or samples shall be an independent sample and not

be a portion of a sample collected for medical purposes. The person

collecting the blood sample shall complete the collection portion of a

document provided by law enforcement.

(g) If a person must be restrained to collect the sample pursuant to

this section, law enforcement shall be responsible for applying any such

restraint utilizing acceptable law enforcement restraint practices. The re-

straint shall be effective in controlling the person in a manner not to

jeopardize the person's safety or that of the medical professional or at-

tending medical or health care staff during the drawing of the sample and

without interfering with medical treatment.

(h) A law enforcement officer may request a urine sample upon meet-

ing the requirements of paragraph (1) of subsection (b) and shall request

a urine sample upon meeting the requirements of paragraph (2) of sub-

section (b).

(i) If a law enforcement officer requests a person to submit to a test

of urine under this section, the collection of the urine sample shall be

supervised by: (1) A person licensed to practice medicine and surgery,

licensed as a physician's assistant, or a person acting under the direction

of any such licensed person; (2) a registered nurse or a licensed practical

nurse; or (3) a law enforcement officer of the same sex as the person

being tested. The collection of the urine sample shall be conducted out

of the view of any person other than the persons supervising the collection

of the sample and the person being tested, unless the right to privacy is

waived by the person being tested. When possible, the supervising person

shall be a law enforcement officer. The results of qualitative testing for

drug presence shall be admissible in evidence and questions of accuracy

or reliability shall go to the weight rather than the admissibility of the

evidence. If the person is medically unable to provide a urine sample in

such manner due to the injuries or treatment of the injuries, the same

authorization and procedure as used for the collection of blood in sub-

sections (d) and (e) shall apply to the collection of a urine sample.

(j) No law enforcement officer who is acting in accordance with this

section shall be liable in any civil or criminal proceeding involving the

action.

(k) Before a test or tests are administered under this section, the

person shall be given oral and written notice that: (1) Kansas law requires

the person to submit to and complete one or more tests of breath, blood

or urine to determine if the person is under the influence of alcohol or

drugs, or both;

(2) the opportunity to consent to or refuse a test is not a constitutional

right;

(3) there is no constitutional right to consult with an attorney regard-

ing whether to submit to testing;

(4) if the person refuses to submit to and complete any test of breath,

blood or urine hereafter requested by a law enforcement officer, the per-

son may be charged with a separate crime of refusing to submit to a test

to determine the presence of alcohol or drugs, which carries criminal

penalties that are greater than or equal to the criminal penalties for the

crime of driving under the influence, if such person has:

(A) Any prior test refusal as defined in K.S.A. 8-1013, and amend-

ments thereto, which occurred: (i) On or after July 1, 2001; and (ii) when

such person was 18 years of age or older; or

(B) any prior conviction for a violation of K.S.A. 8-1567 or 8-2,144,

and amendments thereto, or a violation of an ordinance of any city or

resolution of any county which prohibits the acts that such section pro-

hibits, or entering into a diversion agreement in lieu of further criminal

proceedings on a complaint alleging any such violations, which occurred:

(i) On or after July 1, 2001; and (ii) when such person was 18 years of

age or older;

(5) if the person refuses to submit to and complete any test of

breath, blood or urine hereafter requested by a law enforcement officer,

the person's driving privileges will be suspended for one year for the first

or subsequent occurrence;

(6) if the person submits to and completes the test or tests and

the test results show:

(A) An alcohol concentration of .08 or greater, the person's driving

privileges will be suspended for 30 days for the first occurrence and one

year for the second or subsequent occurrence; or

(B) an alcohol concentration of .15 or greater, the person's driving

privileges will be suspended for one year for the first or subsequent oc-

currence;

(7) refusal to submit to testing may be used against the person at any

trial on a charge arising out of the operation or attempted operation of a

vehicle while under the influence of alcohol or drugs, or both;

(8) the results of the testing may be used against the person at any

trial on a charge arising out of the operation or attempted operation of a

vehicle while under the influence of alcohol or drugs, or both; and

(9) after the completion of the testing, the person has the right to

consult with an attorney and may secure additional testing, which, if de-

sired, should be done as soon as possible and is customarily available from

medical care facilities willing to conduct such testing.

(l) If a law enforcement officer has reasonable grounds to believe that

the person has been driving a commercial motor vehicle, as defined in

K.S.A. 8-2,128, and amendments thereto, while having alcohol or other

drugs in such person's system, the person shall also be provided the oral

and written notice pursuant to K.S.A. 8-2,145, and amendments thereto.

Any failure to give the notices required by K.S.A. 8-2,145, and amend-

ments thereto, shall not invalidate any action taken as a result of the

requirements of this section. If a law enforcement officer has reasonable

grounds to believe that the person has been driving or attempting to drive

a vehicle while having alcohol or other drugs in such person's system and

such person was under 21 years of age, the person also shall be given the

notices required by K.S.A. 8-1567a, and amendments thereto. Any failure

to give the notices required by K.S.A. 8-1567a, and amendments thereto,

shall not invalidate any action taken as a result of the requirements of

this section.

(m) After giving the foregoing information, a law enforcement officer

shall request the person to submit to testing. The selection of the test or

tests shall be made by the officer. If the test results show a blood or

breath alcohol concentration of .08 or greater, the person's driving priv-

ileges shall be subject to suspension, or suspension and restriction, as

provided in K.S.A. 8-1002 and 8-1014, and amendments thereto.

(n) The person's refusal shall be admissible in evidence against the

person at any trial on a charge arising out of the alleged operation or

attempted operation of a vehicle while under the influence of alcohol or

drugs, or both. The person's refusal shall be admissible in evidence against

the person at any trial on a charge arising out of the alleged violation of

section 2, and amendments thereto.

(o) If a law enforcement officer had reasonable grounds to believe

the person had been driving a commercial motor vehicle, as defined in

K.S.A. 8-2,128, and amendments thereto, and the test results show a

blood or breath alcohol concentration of .04 or greater, the person shall

be disqualified from driving a commercial motor vehicle, pursuant to

K.S.A. 8-2,142, and amendments thereto. If a law enforcement officer

had reasonable grounds to believe the person had been driving a com-

mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments

thereto, and the test results show a blood or breath alcohol concentration

of .08 or greater, or the person refuses a test, the person's driving privi-

leges shall be subject to suspension, or suspension and restriction, pur-

suant to this section, in addition to being disqualified from driving a com-

mercial motor vehicle pursuant to K.S.A. 8-2,142, and amendments

thereto.

(p) An officer shall have probable cause to believe that the person

operated a vehicle while under the influence of alcohol or drugs, or both,

if the vehicle was operated by such person in such a manner as to have

caused the death of or serious injury to a person. In such event, such test

or tests may be made pursuant to a search warrant issued under the

authority of K.S.A. 22-2502, and amendments thereto, or without a search

warrant under the authority of K.S.A. 22-2501, and amendments thereto.

(q) Failure of a person to provide an adequate breath sample or sam-

ples as directed shall constitute a refusal unless the person shows that the

failure was due to physical inability caused by a medical condition unre-

lated to any ingested alcohol or drugs.

(r) It shall not be a defense that the person did not understand the

written or oral notice required by this section.

(s) No test results shall be suppressed because of technical irregular-

ities in the consent or notice required pursuant to this act.

(t) Nothing in this section shall be construed to limit the admissibility

at any trial of alcohol or drug concentration testing results obtained pur-

suant to a search warrant.

(u) Upon the request of any person submitting to testing under this

section, a report of the results of the testing shall be made available to

such person.

(v) This act is remedial law and shall be liberally construed to promote

public health, safety and welfare.

(w) As used in this section, ''serious injury'' means a physical injury

to a person, as determined by law enforcement, which has the effect of,

prior to the request for testing:

(1) Disabling a person from the physical capacity to remove them-

selves from the scene;

If you have been charged with drunk driving, contact our law firm to discuss your DUI defense with an experienced criminal defense lawyer. As Kansas attorneys, we strive to provide the best legal representation.

It should be noted that K.S.A. 8-1001(b)(2) has recently been ruled as Unconstitutional. This is having a huge impact for a lawyer defending a DUI charge. The lower courts pay attention when the defense attorney specifically points out a relevant ruling by an appeals court.