The status of the criminalization of refusing to take a breath test remains in flux. On one hand, the Kansas Supreme Court clarified that it is contrary to the Kansas Constitution to criminalize the refusal. But, then the United States Supreme Court clarified it to be constitutional under the United States Supreme Court. The Kansas Supreme Court has since decided to review the matter again to make a decision for Kansas.
To make matters even more convoluted for the DUI defense attorney like myself, the Kansas Court of Appeals in State v. Kraemer that the good faith exception to the exclusionary rule applied to the giving of the implied consent advisory in violation of State v. Ryce. In other words, even if the officer provided an unconstitutional implied consent, the breath test results would be allowed into evidence due to the good faith exception. I find that baffling. In my opinion, and in general, if the implied consent isn’t correctly provided, then the test results are suppressed. The analysis of the good faith exception was discussed in only 3 paragraphs of the Court’s opinion in Kraemer. The ruling on the good faith exception was incomplete in its conclusory analysis. They did not evaluate the long standing constitutional history of bodily search protections such as those found in cases like Jones and Skinner. They didn’t address how good faith should apply in light of cases like Chastain, that clarified consent must be voluntary and not caused by coercion or duress. Alas, what would cause more duress than being told it is illegal to refuse to take the test? They didn’t address Lubbers, which states that a misstatement of the law renders consent involuntary. Moreover, the Court did not analyze the obligations of both law enforcement and the legislature to modify refusal statutes and advisories after those important decisions. The criminalization of a breath test law came into effect in 2012. When the courts later clarified that criminalization of a refusal was unconstitutional, how could there then possibly be a good faith exception to continue with the practice? For example, both McNeeley and Edgar were decided in 2013. The Declerck was decided in 2014. The legislature and law enforcement should have made adjustments to the laws after those cases came out.
In any event, the law will likely become a little clearer for us drunk driving lawyers because the Kansas Supreme Court will probably be issuing a ruling soon on these issues.