The Kansas Supreme Court next week will hear an appeal by a Hays man over the constitutionality of a breath test taken when he was arrested for driving under the influence.

In the case, State v. Dustin Dean Perkins, the defendant, represented by attorney Michael Holland, Russell, argue that the breath test is a violation of the Fourth Amendment to the U.S. Constitution’s protection against illegal search and seizure.

The case is among five on Monday’s Supreme Court docket, which begins at 9 a.m. in Topeka. Oral arguments can be viewed live through a link at

Perkins was pulled over at about 1:30 a.m. July 1, 2012, after a Hays Police officer observed him running a red light, according to court documents.

The officer noticed Perkins’ eyes were bloodshot and detected an odor of alcohol. He also spotted an open, partially crushed beer can on the floorboard.

Perkins admitted to drinking three beers that evening, and exhibited “clues of impairment” in a field sobriety test. At the Ellis County Law Enforcement Center, Perkins agreed to submit to a breath test after being given oral and written notices of Kansas’ implied consent laws.

The test indicated a breath-alcohol concentration of 0.158 grams, above the legal limit, and Perkins was charged with two charges of misdemeanor DUI, no proof of insurance and transportation of liquor in an open container, according to court records.

Perkins attempted to suppress the breath test in his case in Ellis County District Court in 2013, arguing that the threat of criminal prosecution for refusing a breath test is coercion.

Kansas statute states that anyone operating a vehicle has given implied consent to alcohol testing, and that withdrawing that consent by refusing to take a breath test is a crime.

District Judge Ed Bouker denied the motion, citing a 2010 Kansas Supreme Court case, State v Johnson. The opinion from that case reads in part, “It is reasonable in light of the state’s interest in safety on public roads” that implied consent does not violate the Constitution.

Perkins was found guilty in a bench trial.

While Perkins’ appeal was pending, the state supreme court struck down the state law making it a crime to withdraw consent in two rulings.

In one case, the court said punishing an individual for withdrawing consent violated the right to be free from unreasonable search. In a second ruling the same day, the court said because the state could not impose criminal penalties for refusing a breath test, the defendant’s consent to submit to the test was obtained my means of inaccurate and coercive advisement.

Soon after, the U.S. Supreme Court also ruled drivers cannot validly consent to blood-alcohol tests based on the threat of criminal charges if they refuse, but held breath tests are constitutionally accepted.

The Kansas Court of Appeals upheld Perkins’ conviction, noting there are several exceptions to a warrantless search being unreasonable.

The appellate court ruled the breath test was a search incident to arrest, which allows a warrantless search of a person who has been arrested.

“This is a categorical rule that does not depend on a case-by-case analysis of the threat to officer safety, or of evidence loss, such as from the natural dissipations of alcohol,” the court’s opinion said.

“The impact of a breath test on a person’s privacy is minimal, and the governmental need to control drunk driving is great,” it said.

The court also ruled that while the threat of criminal prosecution for refusing the test is coercion, the arresting officer acted in reliance on what was state statute at the time.

“At the time of the arrest, the officer was required by law to advise Perkins that failure to submit to a breath test could constitute a separate crime. The investigator here followed the law,” the opinion said.