In February of 2016 the Supreme Court of the State of Kansas declared Kansas’ criminal refusal statue unconstitutional. In State of Kansas v. Ryce, State of Kansas v. Wycoff, State of Kansas v. Nece and State of Kansas v. Wilson, the Supreme Court found K.S.A 8-1025 (criminalizing the refusal of a chemical test) Facially Unconstitutional.
The Court relied on violations of Due Process and the Doctrine of Unconstitutional Conditions, in finding the statute facially Unconstitutional. The ruling remains very much in doubt. On February 26, 2016, the very day the above opinions were released, the office of the Attorney General of the State of Kansas filed a “Motion to Stay All Further Proceedings” requesting that the Kansas Supreme Court stay any issuance of the mandate in these cases. On March 18, 2016, the Attorney General’s office subsequently filed a “Motion for Rehearing or Modification” asking the Supreme Court to reconsider and reverse its holdings in these cases. As of this time, the mandate has not been issued, and the reconsideration remains pending.
In the interim the Supreme Court of the United States decided Birchfield v. North Dakota, which allows for States to criminalize the refusal of a chemical breath test (also finding the criminalization of the refusal of a blood test was a violation of due process).
The Supreme Court of Kansas could still maintain its original decision as it based its ruling on both the 4th Amendment of the United States Bill of Rights, as well as section 15 of the Kansas Bill of Rights. Thus, the Supreme Court of Kansas could still rule that section 15 provides additional protections to Kansas citizens above and beyond those deemed un-applicable by the United States Supreme Court in the Birchfield decision.
Leslie F. Hulnick has been licensed as an attorney in Kansas for the last 40 years. He was certified as a Specialist is DUI Defense in 2000. You may contact Mr. Hulnick through his website at www.hulnicklaw.com or by telephone at (316) 371-1913.
