Kansas Supreme Court Rules DUI Tests Unconstitutional

U.S. Supreme Court will consider similar cases, but will the Kansas decision affect Florida?

Isn’t a person who is suspected of drunk driving entitled to the same rights related to police searches as anyone else? In many states, the answer is NO.

Ordinarily, the police need a warrant in order to conduct a search, but not during a DUI stop. The concept of “implied consent” allows the police to cross that line and conduct a warrantless search, including a breath or blood test of a DUI suspect to determine if the driver is impaired. Refuse the test and your license is suspended. No exceptions.

Thirteen states make it a crime to refuse a DUI test.

Kansas Draws the Line

The State of Kansas drew a firm line on Feb. 26, 2016, when the Kansas Supreme Court, in a 6-1 opinion authored by the Hon. Justice Marla J. Luckert, declared that mandatory DUI tests are “facially unconstitutional,” meaning unconstitutional in all circumstances, not just in the particular case of State of Kansas v. Darwin Estol Wycoff.

In Wycoff, the Kansas Supreme Court cited both the Fourth and Fourteenth Amendments to the U.S. Constitution and Section 15 of the Kansas Constitution Bill of Rights, concluding: “An individual has a right … to withdraw consent to a search. … Punishing an individual for exercising that right with criminal penalties, as the State has chosen to do … is facially unconstitutional.”

Wycoff was arrested for DUI and other related charges in December 2012 in Salina, Kansas. He refused to submit to a field sobriety test and also refused a DUI breath test after he was transported to jail. He was charged with DUI, refusing to submit to an evidentiary test as mandated under Kansas law (K.S.A. 2014 Supp. 8-1025), and other offenses.

Wycoff moved to suppress the evidence, claiming § 8-1025 was unconstitutional because it violated the Fourth Amendment prohibition against unreasonable searches, the Fifth Amendment right against self-incrimination, and due process rights guaranteed by the Fourteenth Amendment. After rejecting most of Wycoff’s claims, a district court concluded that § 8-1025, which criminalized his test refusal, imposed an unconstitutional condition on his privilege to drive.

The State appealed to the Kansas Supreme Court after dropping the other charges. But the Supreme Court sided with the Constitution and Wycoff was acquitted.

DUI tests, the Kansas Supreme Court concluded, are searches.

A search is unreasonable if it is conducted without a warrant and any evidence gathered in such a search must be excluded. No longer will a person be punished in Kansas for exercising his or her right to be free from unreasonable searches and seizures when suspected of DUI. Furthermore, implied consent is not irrevocable, the Court decreed. In addition, the Court maintained that the State’s interest in battling drunk driving does not trump the Bill of Rights.

U.S. Supreme Court Will Have the Final Word

Although the Wycoff decision only applies to Kansas, it may have far-reaching implications. Kansas may appeal the state Supreme Court decision to the U.S. Supreme Court, which has already agreed to decide whether a blood or breath test for drunk driving can be conducted without a search warrant and whether, if there is no warrant, a person can be charged with a crime for refusing to submit to a DUI test.

The U.S. Supreme Court indicated in December 2015 that it would rule before the end of its current session on three cases involving DUI tests, two from North Dakota (Birchfield v. North Dakota and Beylund v. Levy) and one from Minnesota (Bernard v. Minnesota), that involve the legality of DUI tests. The cases differ in that in one, a person declined a DUI blood test, and in another, a person refused to submit to a DUI breath test.

In the third case, a person was convicted of DUI after refusing field sobriety testing before being taken to a hospital for a blood test against his wishes. The U.S. Supreme Court will be reviewing that person’s punishment for refusing the DUI tests — a two-year driver’s license suspension — instead of the jail time and fine he received for the DUI conviction, according the U.S. Supreme Court blog.

The three cases are scheduled to be consolidated and heard together in a one-hour argument, but as of Feb. 29, 2016, they had not been placed on the court docket. The Kansas prosecutor who initially prosecuted Wycoff indicated in a news report that he hoped Wycoff could be added to the existing three cases that will come before the U.S. Supreme Court, although that has not yet occurred. The Supreme Court’s final decision will apply nationwide.

Opponents are lined up for this battle, with prosecutors and anti-drunk driving advocates such as Mothers Against Drunk Driving (MADD) on one side and criminal defense attorneys, civil libertarians and citizens rights groups such as the American Civil Liberties Union (ACLU) on the other side. A final decision by the U.S. Supreme Court may not come until sometime in mid-2016.

Impact of Wycoff in Florida

The issues raised by Wycoff and the DUI test refusal cases in North Dakota and Minnesota may have an impact in Florida, although much hinges on the upcoming U.S. Supreme Court decision in the North Dakota and Minnesota cases.

Implied Consent in Florida

A driver may refuse to submit to a chemical test for alcohol or drugs, but under Florida’s “implied consent” law (Florida Statutes, Chapter 316, § 316.1932), a DUI test refusal results in an automatic driver’s license suspension.

“Implied consent” means that when a person obtains a driver’s license, he or she gives consent to provide a breath, blood, or urine sample when properly requested by a law enforcement officer. Refusal of a DUI test results in an automatic driver’s license suspension.

In Florida, the suspension is one year for a first DUI involving a refusal to submit to testing. The administrative suspension can increase to 18 months for a second or subsequent refusal to submit to testing.

Clearly, Florida’s law is quite similar to the one that was struck down last week in Kansas and the laws that are being challenged in North Dakota and Minnesota.

Attorney for DUI Tests and Implied Consent in West Palm Beach, Florida

The DUI and criminal defense attorneys at Meltzer & Bell, P.A., in West Palm Beach, FL, represent clients throughout Broward County and the surrounding areas. Our experienced lawyers have often represented clients who were charged with refusal to undergo a DUI test or a violation of Florida’s implied consent law. We closely monitor the evolving DUI laws in Florida and across the country and we believe the recent Kansas ruling may have a nationwide impact.

If you were arrested for DUI or charged with refusal to submit to a DUI test, contact the knowledgeable attorneys at Meltzer & Bell, P.A. today to schedule a free, confidential appointment with one of our attorneys. Your driving privileges and your freedom deserve qualified, competent legal representation. Call us in West Palm Beach today at (561) 515-5834.

Consequences of a Second Refusal to Submit to Testing after a Florida DUI Arrest

refuse, refusing, and refusal

Florida’s implied consent statute creates a legal fiction that anyone who obtains a Florida driver’s license or drives on the roads of this state will “consents” to a lawfully requested blood, breath, or urine test when an officer has probable cause of DUI.

Despite this legal fiction, when a person is actually arrested for DUI, he or she might decide to refuse to submit to the breath, blood or urine test. Recent statistics in Florida show that more than 40% of DUI cases result in the arresting officer finding that the suspect refused a chemical test.

Florida law already provides for harsh penalties when a person refuses a lawful test including an immediate 18 month license suspension with no possibility of a hardship license.

Additionally, at the trial, the fact that the defendant refused testing even knowing that it would result in an immediate administrative license suspension is admissible at trial.

Furthermore, the prosecutor generally gets to argue during the DUI trial that the defendant refused to test because he knew that if he submitted the results would indicate guilt (often called “consciousness of guilt argument”).

But then the Florida legislature went one step further by making the second refusal a separate and independent crime. A second refusal can be charged as a first degree misdemeanor, punishable by up to 12 months in jail and a $1,000 fine. Therefore, if your driver’s license was previously suspended for failing to submit to a lawful test (the administrative suspension) even if you were not convicted of the DUI, then if you refuse a second time the prosecutor can charge you with:

  1. the DUI where the refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings; and
  2. a separate and independent offense called the “Second DUI Refusal” under Section 316.1939.

Section 316.1939 Makes a Second DUI Refusal a Separate Crime

Section 316.1939, Florida Statutes (2013) states that a first degree misdemeanor is committed when:
  1. the arresting officer has probable cause to believe the suspect was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages;
  2. after being placed under lawful arrest for DUI, the suspect is informed of the license suspension provisions of the implied consent statute;
  3. after being so informed, the suspect refuses to submit to a lawfully requested chemical test of his blood, breath or urine; and
  4. the person has suffered a license suspension for previously refusing a chemical or physical test of his or her breath, blood or urine.

Is Section 316.1939 Unconstitutional After Missouri v. McNeely?

In State v. Nichell, 21 Fla. L. Weekly Supp. 933a (May 22, 2014), the Honorable Belle B. Schumann, County Court Judge for the 7th Judicial Circuit in and for Volusia County considered whether this statute was unconstitutional on its face and as applied after the recent U.S. Supreme Court decision in Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013).

Although the DUI defense attorneys at Meltzer & Bell, P.A., in West Palm Beach in Palm Beach County, were not involved in the case, we recognize the important role that these orders in county court cases throughout the State of Florida have on our pending cases. We strive to stay current on recent changes in the law that impact DUI defense.

The issue decided in Nichell was whether the prior refusal statute in Section 316.1939, is unconstitutional on its face and as applied to the facts in that case because it violates the exercise of the constitutional right to be free from unreasonable search and seizures, specifically, the constitutional right to refuse to consent to a warrantless search.

The Court struggled with the different between “actual voluntary consent” as an exception to the warrant requirements of the 4th Amendment and Florida’s “implied consent” created by the Florida Legislature. The Court reasoned:

“The consent granted by the implied consent statute must be equated with Fourth Amendment consent since a breath, blood or urine test is a search without a warrant. If it is Fourth Amendment consent, then under prevailing law, it can be withdrawn without penalty. This presents a logical conundrum, particularly considering the long standing existence of the implied consent statute. It may be that the answer lies in the recognition that in this context, the reasonable expectation of privacy while driving a vehicle is less and constitutional rights are less protected when people engage in this activity. For instance, there is no Fifth Amendment right against self-incrimination because compelling a breath, blood or urine test “is not an interrogation of constitutional proportions.” State v. Busciglio, 976 So. 2d 15 (Fla. 2d DCA) rev. denied, 992 So. 2d 819 (Fla. 2008). Likewise, there is no Sixth Amendment right to confer with counsel prior to submitting to a test, either at the roadside or at the station. Id. (citation omitted). Perhaps, as Judge David Foxman suggests in an order on this issue entered this date, the implied consent statute must be recognized as its own exception to the warrant requirement, but if so, that must be done by judges not sitting in county court. State v. Caporuscio, et al., Case No. 2013-318342MMDB.”

The court ultimately denied the criminal defense attorneys’ motion to dismiss charge of refusing to submit to lawful chemical or physical test of breath, blood, or urine after having driving privilege previously suspended for a prior refusal. The court found that Florida’s implied consent statute provides “consent to search” as an exception to Fourth Amendment warrant requirement.

Therefore, the Court found that Section 316.1939 is not unconstitutional on its face or as applied to defendant because it criminalizes the exercise of right to refuse to consent to a blood, breath, or urine test. The Court certified the following question:

IF THE IMPLIED CONSENT STATUTE PROVIDES CONSENT TO SEARCH AS AN EXCEPTION TO THE FOURTH AMENDMENT WARRANT REQUIREMENT, THEN CAN THAT CONSENT BE WITHDRAWN BY REFUSAL TO SUBMIT TO AN OTHERWISE LAWFUL TEST OF BREATH, BLOOD OR URINE AND CAN THE SECOND SUCH REFUSAL BE A CRIMINAL OFFENSE?

Finding an Attorney for the Second DUI Refusal in West Palm Beach, FL

Only time will tell whether the Florida Supreme Court will find that Section 316.1939, which criminalizes a second refusal to submit to testing after a DUI arrest, is unconstitutional.

If your DUI case in West Palm Beach or Palm Beach County involves a refusal to submit to testing, a charged for a second refusal under Section 316.1939, or a warrantless breath blood or urine test taken without free and voluntary consent, then contact a criminal defense attorney at Meltzer & Bell, P.A., with offices at 601 N Dixie Hwy, Suite B, West Palm Beach, FL, 33401.

The DUI defense attorneys at Meltzer & Bell, P.A., represent clients charged in DUI refusal cases, both felonies and misdemeanors, throughout West Palm Beach and Palm Beach County, FL. Call 561-283-3259 today for a free consultation to discuss your case. Read more finding a criminal defense attorney for a second DUI refusal in West Palm Beach, FL.

We represent clients charged with DUI throughout all of the courthouses in Palm Beach County including the Main Court in West Palm Beach , the North County Courthouse in Palm Beach Gardens , the South County Courthouse in Delray Beach , and the West County Courthouse in Belle Glade.