TOPEKA — Kansas Attorney General Derek Schmidt on Wednesday asked the Kansas Supreme Court to reconsider a group of driving under the influence cases in the wake of a contradictory decision last week from the U.S. Supreme Court.
The nation’s high court ruled in a 5-3 opinion that warrantless breath tests are constitutional, but warrantless blood tests are unconstitutional. By extension, criminal penalties for refusing to take a breath test are constitutional, but criminal penalties for refusing to have blood drawn are unconstitutional.
The Kansas Supreme Court, however, determined in February that punishment for refusing a DUI breath test violated Fourth Amendment protections from unreasonable search and seizure.
Schmidt on Monday requested the Kansas Supreme Court reconsider its case in light of the U.S. Supreme Court ruling.
“We think the Kansas court’s conclusion must yield to that of the U.S. Supreme Court, and we have requested clarity on the matter,” Schmidt said in a release.
The U.S. Supreme Court case held that a Minnesota man didn’t have a right to refuse a breath test for alcohol and his constitutional rights weren’t infringed upon when he was criminally punished for his refusal. Because the case involved laws in Minnesota and North Dakota, not Kansas, it falls on the Kansas Supreme Court to sort out the difference between what Schmidt calls “asymmetrical” opinions over whether criminal punishments for refusing to take a breath test in Kansas are constitutional, Schmidt told the Topeka Capital-Journal last week.
The law in question in the Kansas Supreme Court ruling was a 2012 amendment to the state’s DUI laws that added a provision stating refusal to submit to a breath test is a crime with punishments comparable to those for driving under the influence.
In March, Schmidt joined 17 other attorneys general in asking the U.S. Supreme Court to decide three DUI cases in a way that upheld state laws punishing breath test refusal, calling such laws “critical to the states’ ability to eradicate the frightful ‘carnage’ caused by impaired drivers with ‘tragic frequency’ across the country.”