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.

DUI Checkpoints: Still Legal and Still Controversial 25 Years Later

With the holidays fast approaching, it is the time of year to celebrate. Thanksgiving, Christmas, and New Year’s are usually happy times when people re-connect with family and friends.

While traveling the highways and byways to and from their celebratory activities, drivers in West Palm Beach and Palm Beach County may encounter a sobriety checkpoint staffed by the police, sheriff’s office, or Florida Highway Patrol, especially if traveling late at night or in the early-morning hours.

Cities in and around West Palm Beach and Palm Beach County have employed these “DUI checkpoints” in the past in an effort to catch drunk drivers, especially around major holidays.

If you drive into a DUI checkpoint, you should cooperate with the police. You may be able to proceed right away, but if you are detained, it should only be for a few minutes.

If you are arrested at a checkpoint — for DUI or any other charge — it is wise to contact an attorney to discuss your case. Police must follow established rules when employing checkpoints or all the evidence may be excluded. A lawyer may be able to find errors with the establishment of the checkpoint, or the conduct of law enforcement. Your attorney may be able to find other ways to poke holes in the validity of the arrest that could lead to a reduction of the charge or an outright dismissal of charges.

But don’t DUI checkpoints violate the law, especially the Fourth Amendment to the U.S. Constitution, which prevents illegal searches and seizures?

Yes, and no.

Twenty-five years ago, in the 1990 U.S. Supreme Court case of Michigan State Police v. Sitz (496 U.S. 444), the court authorized sobriety checkpoints. “The measure of the intrusion on motorists stopped briefly at sobriety checkpoints – is slight,” wrote Chief Justice William Rehnquist in a 6-3 majority opinion.

“Constitutional balance must be struck in favor of protecting the public against even the ‘minimally intrusive’ seizures involved in this case. … No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it” because the state has a “grave and legitimate interest in curbing drunk driving,” Rehnquist wrote.

In giving its blessing to sobriety checkpoints, the majority relied on previous rulings in which it declared:

“Where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant.” (See National Treasury Employees Union vs. Von Raab, 489 U. S. 656 (1989) and U.S. vs. Martinez–Fuerte, 428 U.S. 543 (1976)).

In other words, preventing drunk driving outweighed the normal “reasonableness” requirements of the U.S. Constitution for other types of detentions.

In a blistering dissent, Justice John Paul Stevens disputed some of Rehnquist’s facts (including the assertion of an increasing problem despite facts showing a declining number of deaths due to drunk driving) and wrote that the court gave unlimited discretion to law enforcement to detain drivers on any suspicion, whereas the law requires reasonable suspicion:

“This is a case that is driven by nothing more than symbolic state action — an insufficient justification for an otherwise unreasonable program of random seizures. Unfortunately, the Court is transfixed by the wrong symbol — the illusory prospect of punishing countless intoxicated motorists — when it should keep its eyes on the road plainly marked by the Constitution.”

Twenty-five years later, during the holiday season of 2015, Drivers in West Palm Beach and Palm Beach County should be aware that a checkpoint may pop up anywhere at any time, especially on nights when people are considered more likely to drink alcohol. If you are concerned about DUI checkpoints, there are several things you can do legally to avoid them:

  • Follow the media (newspapers, TV, and radio) to learn about reports of DUI checkpoints. Law enforcement agencies are required to publicize the locations and times of checkpoints, but they often give little advance warning or do so on the day of the checkpoint.
  • Contact local law enforcement agencies or go to their web sites for information about DUI checkpoints.
  • A few Internet sites are in the business of tracking DUI checkpoints, including Roadblock.org and DUIblock.com.
  • It is legal to avoid a checkpoint in the distance by turning left or right onto a cross street or even making a U-turn as long as no traffic violations occur in doing so.
  • It is legal to enter a location (such as the property of an open business) prior to coming upon a checkpoint.

Law enforcement agencies must follow strict guidelines when conducting DUI checkpoints. They must have a written plan and the officers in the field must follow it. They may not randomly select drivers to detain, although stopping every fourth of fifth driver that passes through a checkpoint has been declared legal. Any deviation from the guidelines may make the entire checkpoint unconstitutional.

Over the past 25 years, many law enforcement officers have continued to make serious mistakes in the implementation of a checkpoint or its actual execution in the field.

If you are ensnared by a DUI checkpoint, remain calm and cooperate. If you are detained too long or arrested, make careful observations about the process unfolding, because the police may make a mistake that could lead to the suppression of any evidence they recover.

Have a Happy Holiday season in 2015 and be safe out there. And if you need an attorney after a DUI checkpoint arrest, the experienced attorneys at Meltzer and Bell are ready to represent you.

Will U.S. Supreme Court Deliver Another Landmark Decision on Racial Discrimination?

During the jury selection process, a judge may dismiss a prospective juror “for cause” if he or she believes that juror will be unable to decide the case impartially. However, both the prosecutors and the defense attorneys are also given a limited number of “peremptory challenges,” which are the right to strike certain prospective jurors without having to provide any reason for doing so.

This is a powerful right, but the United States Supreme Court has established certain precedents to make sure that peremptory challenges are not abused. One case was the 1986 landmark decision in Batson v. Kentucky, in which James Kirkland Batson, a black man, was convicted of burglary and receipt of stolen goods by an all-white jury after prosecutors struck all four potential black jurors. In a 7-2 decision, the Court ruled that the striking of prospective black jurors in this case violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The Batson decision is one that is likely to be revisited when the Supreme Court hears Timothy Tyrone Foster v. Carl Humphrey this fall. Less than one year after the Batson decision, Foster was convicted of murdering a 79-year-old widow and schoolteacher in Georgia. Foster is black and the victim was white, but notes in documents uncovered by Foster’s legal team show that prosecutors deliberately struck prospective black jurors in his case.

Ordinarily, it can be very difficult to prove that a prosecutor had racist intent in striking prospective jurors for criminal cases involving capital offenses such as violent crimes. However, some of the notes that were discovered through an open records request seem to make the prosecution’s intent remarkably clear. On four different copies of the jury list, the name of every black prospective juror was highlighted in green. The word “BLACK” was circled next to the question about race on the juror questionnaires of five black prospective jurors. Furthermore, prosecutors not only ranked each black prospective juror against the others in case “it comes down to having to pick one of the black jurors,” but created strike lists that contradict the “race-neutral” explanation provided by the prosecution for striking those jurors.

While Justice Lewis Powell wrote the majority opinion in Batson, Justice Thurgood Marshall authored a powerful concurring opinion:

I join Justice Powell’s eloquent opinion for the Court, which takes a historic step toward eliminating the shameful practice of racial discrimination in the selection of juries. I nonetheless write separately to express my views. The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.

Misuse of the peremptory challenge to exclude black jurors has become both common and flagrant.

Nearly 30 years after Batson, we are hopeful that the Roberts Court will similarly establish legal safeguards that ensure that every American—regardless of his or her race—has the right to a fair trial.