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The Arrest Must Be From An Alcohol Related Offense To Require Testing

Refusing to submit to a blood, breath, or other chemical test which tests for BAC levels is now a crime in Kansas. This obviously raises defense complications for us DUI defense lawyers. However, the Kansas Supreme Court has clarified, that the arrest must be for an alcohol related offense for law enforcement to requests such a test. The plain language of K.S.A. 2007 Supp. 8-1001(b) requires an arrest for an alcohol-related driving offense rather than simply requiring an arrest for any offense involving operation of a motor vehicle. This was good ammunition for the drunk driving defense attorneys or anyone else attempting to protect 4th Amendment rights.

The case was Shrader v. Kansas Department of Revenue and can be read here. Under the facts of that case, the offense for which defendant was arrested did not authorize police to request a breath test. Consequently, the defendant's refusal to take the breath test could not serve as the basis for suspending his driver's license.