Criminalizing refusal to take PBT is also unconstitutional

Kimberly Streit Vogelsberg won in State v. Robinson, No. 116,872 (Kan. App. December 22, 2017), reversing in part a Johnson County conviction for refusal to submit to a preliminary breath test (PBT). The state had conceded that a conviction for refusal to submit to BAC testing was unconstitutional under Ryce (blogged about here).  Acknowledging that a PBT is a search, the COA held that the separate conviction for refusing to submit to a PBT test was similarly unconstitutional:

In Ryce I, our Supreme Court determined that K.S.A. 8-1025 narrowly and unambiguously penalizes a driver for refusing to submit to a search "deemed consented to" under K.S.A. 8-1001(a). Applying the text of 8-1025 to the constitutional principles regarding reasonable searches, the court concluded that the State cannot criminally punish a defendant for withdrawing his or her implied consent. The same analysis applies to K.S.A. 8-1012. This statute penalizes a driver for refusing to submit to a PBT, which is a search deemed consented to under K.S.A. 8-1001(a). The State cannot criminally punish a defendant for withdrawing his or her implied consent. To the extent that K.S.A. 8-1012 criminalizes a person's right to withdraw his or her consent to what amounts to a warrantless search, the statute violates a suspect's Fourth and Fourteenth Amendment rights and § 15 of the Kansas Constitution Bill of Rights. 

The State asserts that K.S.A. 8-1012, unlike K.S.A. 8- 1025, is narrowly tailored to serve its compelling interests in both combatting and penalizing drunk driving and in protecting public safety on the roads. Specifically, the State argues that K.S.A. 8-1012 is narrowly tailored to serve the criminal justice interests, to serve public safety, and to protect the safety of testing personnel.

In arguing that the statute is narrowly tailored to serve the criminal justice interests, the State points out that unlike with an evidentiary breath test, where an officer already has probable cause to believe that a driver is operating a vehicle while under the 15 influence, the PBT statute only requires reasonable suspicion. In Ryce I, our Supreme Court determined that "[g]iven the availability of a warrant, we question whether 8-1025 is narrowly tailored." The State points out that a warrant is not an available tool for a PBT as the test only requires reasonable suspicion in the first place.

We do not see this argument as helping the State's cause. A PBT is a search subject to the strictures of the Fourth Amendment. A search, absent voluntary consent, ordinarily requires probable cause, not reasonable suspicion. Thus, to the extent that K.S.A. 8-1012(b) is premised on reasonable suspicion, it appears that the statute is based on an incorrect constitutional standard. The fact that a PBT only requires reasonable suspicion makes a driver's free and voluntary consent to such a search all the more vital.

Therefore, the COA held that the statute penalizing refusal to submit to a PBT suffered from the same constitutional flaw as that found in Ryce and reversed.

The state also stipulated that a prior DUI was not comparable to Kansas' DUI statute, so Mr. Robinson's DUI sentence was also vacated and the matter remanded for resentencing.

[Update: the state did not file a PR and the mandate issued on January 29, 2018.]