The United States Supreme Court recently heard oral argument in Birchfield v. North Dakota and related cases. These cases looked at if a state could make it a crime to refuse to take a warrantless chemical test, such as a breath test or blood test, in order to determine a person's blood alcohol level. The court's decision will not be rendered for another few months.
Recently, both the Kansas Supreme Court and the Hawaiian Supreme Court also addressed this issue.
In November 2015, the Hawaiian Supreme Court addressed the issue of criminal penalties for refusing to take a breath test in the case State v. Won. In that case, Yong Shik Won was stopped on suspicion of driving under the influence. He was arrest and then given the choice whether or not to take a chemical test to determine his BAC. Won was told that if refused the test "he would be arrested, prosecuted, and subject to thirty days of imprisonment for the crime of refusal to submit to a breath, blood, or urine test." Won agreed to take a breath test. The Court looked at whether or not Won's choice to take the breath test was consensual.
The court stated that breath tests were considered searches under the law and that people had the right to "right to be free of warrantless searches and seizures is a fundamental guarantee of our constitution." A search can be conducted without a warrant if a person gives consent to the search. But "it must be shown that such consent was voluntarily given." The court stated that consent cannot be coerced and that if a person gives his or her consent to a search, that consent can be revoked. The court found that in Won's case "the threat of the criminal sanction communicated by the Implied Consent Form for refusal to submit to a BAC test is inherently coercive." The court ruled that Won did not freely give his consent to take the breath test because he was only doing so in order to avoid being charged with another crime, and therefore the evidence from his breath test was not admissible evidence. The Court did not disturb the administrative penalties for refusing a test, such as license revocation.
The Kansas Supreme Court looked at the constitutionality of criminal sanctions for breath test refusal in several cases including State v. Ryce. In Ryce, defendant David Lee Ryce was pulled over for DUI. He was arrested and taken to the jail. Ryce was asked to take a breath test and was given notice that his refusal could result in administrative and criminal penalties. Ryce maintained his refusal. On appeal, Ryce argued that the Kansas statute that was criminalized refusal to take a breath test was facially unconstitutional. This means that the statute is "unconstitutional in all circumstances and not just in how it was applied to him." The court looked at whether the statute facially violated the Fourth and Fourteenth amendments.
The Court notes that under the recent U.S. Supreme Court case, Los Angeles v. Patel, the court can only look at the plain language of the statute when determining if the statute is facially valid. As the Kansas statute, K.S.A. 2014 Supp. 8-1025 ("8-1025"), specifically criminalizes consent, the court must determine if the consent exception applies and cannot look at other possible Fourth Amendment exceptions. The court first looked at whether the implied consent given under the state's implied consent law, K.S.A. 2014 Supp. 8-1001, could be withdrawn and the court determined that it could be revoked.
The court then looked at whether the state could criminalize that revocation under 8-1025. The court acknowledged that the right to be free from unreasonable searches is a fundamental right. It also stated that punishing someone for something they are legally allowed to do violates due process. As such the court analyzed 8-1025 under strict scrutiny to determine if it was constitutional. Under strict scrutiny, a statute can only survive if it furthers a compelling governmental interest and it narrowly tailored to achieve that aim. The court determined that while the state's interests to combat drunk driving test refusals and protect the public were compelling, 8-1025 was not narrowly tailored as the state could get a warrant to determine a person's BAC and there were civil penalties that the state could impose.
In sum, the court determined that 8-1025 was facially unconstitutional and violated Ryce's Fourth and Fourteenth Amendment rights.
We are awaiting the state's supreme court rulings in two cases that will impact DUI cases. First, in State v. Baird-Adams, the court will deliver it's opinion on warrantless blood draws for DUI drivers. In State v. Mecham, the court will decide whether a driver's refusal to submit to field sobriety tests (FST's) are admissible to show a consciousness of guilt.
If you have been arrested for DUI, and are concerned that your constitutional rights may have been violated, call the law office of Aaron Wolff at (425) 284-2000 or contact him online.