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House Criminalizes Breath Refusals

Despite legitimate concerns about trampling on the People's Constitutional rights, the House, in Topeka, approved a bill which criminalizes refusing to take a breath test during a DUI investigation. The House passed the bill 103-13. It is not yet law as the Senate still must approve it. However, the Senate is expected to pass it today, unless they remember the value of our Constitution.

Apparently, the bill, Senate Bill 60, criminalizes the refusal if the person who refuses had a prior DUI conviction or refusal. It would be a misdemeanor, carrying jail time. It will be interesting to see whether a prior diversion will count as a conviction. I suspect it will, given how the current statutes read on drunk driving diversions.

Prior to passing this in the House, there was debate on the Constitutionality. "These are American citizens and they have the right to remain silent, which this bill sort of tramples on, because if you just stand there silent … then you're a criminal," Gatewood said. "You have your 4th and 5th Amendment rights … and I just think there is no greater ridge to stand on than the Constitution of the United States." Gatewood proposed to send the measure back to a House-Senate conference committee for further work, but that motion died on a 23-88 vote.

Others didn't seem to think the Constituion should apply to DUI. "This is not about constitutional rights," said Rep. Bill Otto, R-LeRoy. "What about the constitutional right to life, liberty and the pursuit of happiness? (a phrase from the Declaration of Independence, not the Constitution) When you're killed by a drunk driver, they've deprived you of your life. Death penalty, when you did nothing wrong."

Others argued that the new DUI bill would help unclog the system. Rep. Pat Colloton, R-Leawood, said courts are being clogged with repeat offenders who refuse the DUI test and take their chances with a jury. "The district attorney and county attorney association said the No. 1 use of their attorneys for jury trials were on DUI refusals," Colloton said. "It was using a tremendous amount of manpower throughout the state for jury trials on those people who had multiple convictions for DUI and were smart in refusing to have a DUI test." What she doesn't understand is, this new law will likely cause much greater clogging in the system. Now that it's a crime to refuse, there will be many more cases in the court over that very issue.

This bill will allow first-time DUI offenders and those whose licenses are suspended for other reasons to use small motor scooters as an alternative since they are unable to drive a regular vehicle. They will be allowed to drive motorized bicycles. The definition of a motorized bicycle includes mopeds and scooters of less than 50 cubic centimeters of engine displacement, less than 3.5 horsepower and automatic shifting.

As a DUI defense lawyer, I look forward to reviewing and researching this new law. Every year, it seems that the drunk driving laws in Kansas are adjusted, always making it a challenge for the DUI attorney to stay on top of their game.