TOPEKA — Senators on Monday began the task of overhauling Kansas’ drunk driving laws to crack down on offenders and replace a state law that allowed police officers to compel suspects to take a blood alcohol test.
The Kansas Supreme Court ruled the mandate unconstitutional in 2016, but the U.S. Supreme Court found a similar statute in Minnesota valid. The nation’s high court determined a warrantless breath test was allowable, but an officer would have to obtain a warrant to conduct a blood test. Kansas’ defunct law dictated that operating a vehicle was enough to imply consent to testing to determine a person’s alcohol consumption.
The Senate Judiciary Committee took up bills aimed at providing clarity for officers on how to handle cases where a suspect refuses testing. The bills also would lower penalties in some cases where suspected drunk drivers refuse to take a test.
Sen. Rick Wilborn, a McPherson Republican and chair of the committee, said he was not sure when he would schedule any further debate or a vote on the bill.
Sen. David Haley, a Kansas City Democrat, said the bill was aimed at finding a way to “compel” suspected drunk drivers to take a test without overstepping privacy bounds.
“I think the problem with this entire topic if you look at the big picture is to find a way to balance public safety within the definitions of driving impairment laws and the rights to privacy that no one gives up just because they have a driving privilege,” Haley said. “That’s the balance that’s trying to be struck here.”
Aaron Breitenbach, chief attorney in the traffic division of the Sedgwick County district attorney’s office, argued against a limited-scope bill dealing with test refusals and in favor of a comprehensive overhaul of DUI laws. He said the bill would solve only some of the problems in current state law and misstates the law, potentially jeopardizing every DUI investigation.
“Let me state that again: every DUI investigation, from non-injury traffic stops to multiple fatality crashes, is potentially at risk if this statute is not amended appropriately this session,” Breitenbach said.
The overhaul bill also would seek stronger enforcement of DUI laws by allowing prosecutors to consider drivers’ previous infractions in other states. Ann Henderson, with the Johnson County district attorney’s office, said a repeat drunk driving offender in the Kansas City area initially was charged with several felony-level offenses that had to be amended to two misdemeanors and a felony because the state could not take previous offenses in other states into account.
“And you say, ‘Well, why is that?’ ” Henderson said. “Well, because his priors were in Missouri, which is but a stone’s throw from us in Johnson County. He was actually convicted of Missouri statute as what they call a driving while intoxicated persistent offender because he had so many.”
Henderson said Johnson County has 25 percent of the felony-level DUI cases in the state.
Wilborn said the bill would reform DUI law that has become confusing through tweaks and court cases. It also would provide clarity on cases where someone is found to be under the influence of marijuana or other drugs rather than alcohol.
The overhaul bill also would set a zero tolerance policy regarding controlled substances. A driver could be charged with a DUI for any amount of controlled substance, not just an intoxicating level.
Jay Norton, a criminal defense attorney in Johnson County, said that could punish people who are safe to drive but have the remnants of a drug in their system.
“I take over-the-counter allergy medicine every single day that has pseudoephedrine in it,” Norton said. “If I get a cold or have a cough, I may get some cough syrup that’s got codeine in it.”
Norton said he understood people could defend themselves by saying they took a particular substance lawfully.
“But that’s putting the burden on people to try to come up with proof that they lawfully ingested,” Norton said.
Wilborn said the bill could require tweaking.
“No big piece of legislation like this is ever right the first time through,” Wilborn said.