TOPEKA — A Kansas law requiring motorists to submit to testing for alcohol or drugs is unconstitutional, Shawnee County District Judge Bill Ossmann ruled Wednesday.
Ossmann concluded the constitutional rights of former Topeka City Councilman Andrew Gray were consequently violated last year when the Shawnee County Sheriff’s Office sought to make Gray take a Breathalyer test. Gray refused.
Ossmann issued a memorandum decision dismissing a charge alleging Gray refused to submit to a test for alcohol or drugs as required by Kansas statute 8-1025.
KSA 8-1025 violates the defendant’s Fifth Amendment right against self-incrimination and the due process clause of the 14th Amendment, Ossmann wrote, adding that the Doctrine of Unconstitutional Conditions also provides another basis upon which to find that law unconstitutional. That doctrine prohibits a government from imposing a condition on the granting of a benefit requiring the waiver of a constitutional right.
Ossmann indicated that in granting the request for dismissal filed by Gray’s attorney, Kevin Shepherd, he adopted reasoning put forth last year by Shawnee County District Judge Marc Braun.
Braun issued a 24-page ruling May 27, 2014, dismissing a charge that motorist Derick A. Wilson violated KSA 8-1025 when he refused to submit to a breath test.
Ossmann’s three-page ruling issued Wednesday said that while the Kansas Supreme Court last May heard arguments in three cases addressing the matters involved, it has rendered no decision in those.
Any conclusions the high court reaches regarding the matter could have wide-reaching implications.
Gray still faces an Oct. 1 pre-trial hearing and Oct. 5 jury trial on related charges of driving under the influence and driving on a suspended license.
The charges are linked to a situation in which deputies who responded to a noise complaint at a May 2014 party in southern Shawnee County’s Montara community said they saw Gray walk to his vehicle, sit in the driver’s seat and turn on the headlights and ignition.
The Capital-Journal was attempting Thursday to reach Gray to ask about his reaction to Wednesday’s ruling.
Gray, 47, was elected in April 2011 to the seat representing southwest Topeka’s District 8 on the council. He left office in May 2013, citing unspecified health concerns.
Several months before the Montara incident, Gray was arrested by police in November 2013 in southwest Topeka in connection with misdemeanor DUI. He pleaded no contest and was found guilty of that charge in February 2014 in Topeka Municipal Court.