Sure, under Kansas law, a driver pulled over for driving under the influence can refuse a breath test. But, Barton County Attorney Levi Morris, that doesn’t mean the motorist can’t be prosecuted for driving drunk. 

“Barton County can now consider itself a no-refusal jurisdiction for DUI enforcement,” Morris said. His comments came as he addressed the County Commission Monday morning.

In recent weeks several news sources have reported a change in the law that counties can no longer charge a crime for refusing a roadside preliminary breath test. The headlines tended to suggest that “now” one can refuse.  

“Actually, that’s not a change in the law, it’s the Legislature being three years behind the Kansas Supreme Court and just now getting around to changing the wording of the statute so it matches the law,” Morris said. The Kansas High Court ruled in February of 2016 that one couldn’t be charged/penalized for refusal of a breath test and the legislature left the law on the books.  

“But, that news story made it a good time to announce that we’re going to be a no-refusal county,” he said. “If you refuse a breath test in Barton County, law enforcement will apply for a search warrant of your blood.”

This was sort of a coincidence for the county, he said. In the past three to four months, his office has been working with law enforcement to revamp the warranting process to make it easier for officers to get blood draws in suspected DUI cases after someone refuses the breath test.

“In the past, we’ve seen some cases go to trial because there was no breath test,” Morris said, adding no blood was drawn either and he wanted to know why there was no blood test. 

“I was told why and we are working to make sure that stop,” he said. Now, they hope to take fewer cases to trial.

Previously, when there were no breath or blood tests taken, an “experienced criminal” or defense attorney could force a jury trial. After a costly preceding, the suspect would likely go free.

Now, even though they can decline the breath test, this is less likely to happen, he said. The suspected intoxicated driver will be detained while a warrant is obtained then will be taken to a hospital where the blood will be drawn. 

There is a three-hour window after a stop is made to get the blood taken, Morris said. The timing shouldn’t be a problem, despite the fact that most of the cases occur late at night or really early in the morning.

Commission Chairwoman Jennifer Schartz asked about the costs for the blood tests and who is responsible for them.

Morris wasn’t sure, but believed it would be the law enforcement agency. Even so, he said it would still be much cheaper than going to trail.

Under the law that took effect July 1, police can’t ticket suspected drivers for not taking the test, but refusal to comply calls for a one-year license suspension (equal to the longest suspension for failing a breath or blood test).

Field sobriety tests are usually administered before a driver submits to a breath test to determine intoxication. They can include things like standing on one leg or walking in a straight line. Drivers who refuse to be tested can still be prosecuted for a DUI based on other evidence.

The decision to strike the law designating a separate violation comes as courts have changed thinking on whether drivers give implied consent to sobriety tests.