In 2012, Kansas made it a crime to refuse to take the chemical test (blood, breath, or urine) at the station. As a DUI defense lawyer and constitutionalist, I have been telling my clients ever since 2012 that the law was unconstitutional. Finally, in February of this year, the Kansas Supreme Court issued a ruling in State of Kansas vs Ryce, stating that the law was indeed unconstitutional. Therefore, you couldn’t be charged with that illegal crime. But what about those people who did take the test because they were told it was illegal not to? Well, one of the major impacts of the ruling was that if you were provided that incorrect advisory, then your supposed consent to take the test was coerced and not voluntary. On the same day that the Ryce ruling came out, the Kansas Supreme Court also issued it’s ruling in Nece, which clarified that there is no real consent to submit to the breath test when you were provided such a wrong advisory.
This would seem to clear up the issue and breath alcohol test results gathered after providing such incorrect advisories would be suppressed. But no! Prosecutors and district attorneys are now filing good faith exception motions which basically state that the breath test result should come into evidence because the officer was relying on the illegal law and giving wrong instructions in good faith. The logic of such a motion makes no sense as the Kansas Supreme Court stated that the law was unconstitutional on it’s face. Sadly, the Kansas Court of Appeals recently issued a ruling in State of Kansas vs. Kraemer, and applied the good faith exception to allow such illegally seized evidence. It should be noted that the court in Kraemer did not address numerous important legal issues. Therefore, I have filed motions in other DUI cases arguing how Kraemer shouldn’t rule the day. Furthermore, the Kansas Supreme Court should be taking up the Kraemer decision in the next few months. Hopefully the Kansas Supreme Court will fix the problems created by the Kraemer decision. The last few months have been exciting as a DUI defense attorney and I hope to see some great ruling for my clients accused of drunk driving.