Saturday, March 01, 2014

Statute allowing blood draw for traffic infraction unconstitutional

Reid T. Nelson won in State v. DeClerk, No. 109,759 (Kan. App. Feb. 7, 2014) affirming Judge Parrish's suppression order in a Shawnee County DUI manslaughter case.  Judge Parrish suppressed evidence obtained by warrantless seizure of blood over the state's argument that the blood draw was authorized by K.S.A. 8-1001, which purported to only require probable cause of a traffic infraction to justify a blood draw if a driver is involved in an accident causing death or serious injury; the state also argued that the blood draw was proper as the result of implied consent.  The COA reviewed cases from other jurisdictions and held that the statutory provision that purported to satisfy probable cause by a showing of a traffic violation was unconstitutional:
In light of this overwhelming and persuasive authority, we must conclude K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional to the extent it requires a search and seizure absent probable cause the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol. We are acutely aware the statute in question attempts to address the terrible toll impaired drivers inflict on our state's highways, but we are reminded of the "truism that constitutional protections have costs." Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). While the State does have a significant interest in preventing accidents involving drugs and alcohol on the road, K.S.A. 2011 Supp. 8-1001(b)(2) does not further that interest. A traffic infraction plus an injury or fatality, without more, does not constitute probable cause that drugs or alcohol were involved in the accident.
Similarly, the COA held that the implied consent statute did not operate to authorize a blood draw:
"But the fact that people are 'accorded less privacy in . . . automobiles because of th[e] compelling governmental need for regulation,' [citation omitted], does not diminish a motorist's privacy interest in preventing an agent of the government from piercing his skin." [Missouri v. McNeely, 133 S. Ct. 1552, 1565 (2013).]  In all of the cases relied upon by the State, law enforcement had probable cause or reasonable grounds to believe the driver was operating a vehicle under the influence, and none of the cases stand for the proposition that the implied consent to chemical testing given by drivers on our state's roads under the Kansas implied consent law constitutes consent under the Fourth Amendment.
[Update: the state filed a PR on March 6, 2014.]
[Update: the KSC denied the state's PR and the mandate issued on June 23, 2014.]

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