The Kansas Supreme Court announced Friday it upheld the DUI conviction of a Hays man.
At question in the appeal of Dustin Dean Perkins was whether or not the threat of criminal prosecution for refusing a breath test was unconstitutional at the time of Perkins’ 2012 arrest for driving under the influence.
The state Supreme Court ruled a good-faith exception to the arresting officer’s actions applied in this case.
The officer “followed the law as it existed at that time and could not reasonably be expected to know that the statute would later be found unconstitutional,” the court’s opinion said.
According to court documents, Perkins was stopped by a Hays Police Department officer in July 2012 after running a stop light.
The officer noted Perkins’ eyes were bloodshot and detected an odor of alcohol. The officer also saw an open, partially crushed beer can on the floorboard.
Perkins admitted to drinking three beers that evening, court records say, and exhibited clues of impairment in a field sobriety test.
At the Ellis County Law Enforcement Center, he agreed to the breath test after being given oral and written notices of what was then Kansas’ implied consent laws.
Perkins, represented by Michael Holland, Russell, attempted to suppress the breath test at trial on the grounds that threat of criminal prosecution for refusing a breath test is coercion.
That motion was denied, and Perkins was convicted of DUI in an Ellis County bench trial.
While his appeal was pending, the Kansas Supreme Court issued rulings in two cases related to breath tests. In one, the court ruled punishing an individual for withdrawing consent violated the right to be free from unreasonable search. In the second ruling, the court declared because the state could not impose criminal penalties for refusing a breath test, the defendant’s consent to submit to the test was obtained by means of inaccurate and coercive advisement.
The Kansas Court of Appeals still upheld Perkins’ conviction, noting several exceptions allowing a warrantless search. The appellate court ruled the breath test was a search incident to arrest, which allows a search of a person who has been arrested without first obtaining a warrant.
In addition, the appellate court 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.