DUI checkpoint on Tennessee Street (copy)

The House Judiciary Committee met last Tuesday, Feb. 5, to discuss a bill that would remove legal penalties to drivers who refuse to take a DUI test.

TOPEKA — Under current law, there are inaccuracies in DUI advisories regarding potential suspension times, provisions that were found unconstitutional and a penalty for drivers who refuse to be tested.

The House Judiciary Committee met last week on Tuesday, Feb. 5, for a hearing on a bill that would officially strike legal penalties for drivers who refuse preliminary tests from current DUI legislation. The bill also sets out to further clarify and amend Kansas laws related to driving under the influence.  

“Cleaning up these statutes is important to ensure accurate guidance is provided not only to persons stopped by the police, but also to the officers making those stops,” said Ed Klumpp, legislative liaison for the Kansas Association of Chiefs of Police, Kansas Sheriffs Association and Kansas Peace Officers Association. 

Testimonies in favor of the bill, House Bill 2104, included League of Kansas Municipalities Law Clerk John Goodyear, Mothers Against Drunk Driving National Board Chairman Christopher Mann and Klumpp.

“This bill… provides a proper roadmap with a permissible path of action for local law enforcement officers to follow when making the efforts to administer a preliminary screening test,” Goodyear said.

He said he believes the bill does not violate a driver’s constitutional right, but it imposes a civil and fair penalty if a driver refuses to take a test.

In his written testimony, Mann said the bill would also “keep impaired drivers off our roadways.”

The bill would remove provisions that say refusing to take a preliminary screening test was a traffic infraction. The Kansas Court of Appeals had found it unconstitutional, according to the bill briefing.

It also amends what’s known as implied consent, striking the section in K.S.A. 8-1012 that states, “Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent to submit to a preliminary screening test of the person's breath or saliva, or both, subject to the provisions set out in subsection.

However, the bill still states a driver who refuses to take the test would have their license suspended for one year and refusal to test can be used in legal prosecution.

The bill also amends K.S.A. 8-1001 to clarify the timeframe of driving suspensions. It specifies the one-year suspension for refusal and directly states a period of “either 30 days or one year” for failure of the test.  

Additionally, Jason Thompson, senior assistant for Revisor Statutes, said in order “to be scientifically accurate and modernize the statute,” the bill would change the term “saliva” to “oral fluid.”

Finally, K.S.A. 8-1025 — the crime of refusing to a test — would be repealed by the bill. The Kansas Supreme Court deemed it unconstitutional in 2016, but due to an error, it was never fully repealed, Thompson said.    

There were no opponents to the bill.

If enacted, the bill would be effective after publication in the Kansas Register, the official state newspaper published every Thursday. However, changes to K.S.A. 8-1001 would not be effective until July 1, 2019. 

HB 2104 was a recommendation from the Kansas Judicial Council’s DUI Advisory Committee.

McPherson County Attorney Gregory Benefiel testified on behalf of the Advisory Committee.  

“[The bill] would make driving under the influence consent advisories more accurate, remove unconstitutional portions of preliminary breath test and test refusal statutes, and replace outdated terminology with the scientifically correct term,” Benefiel said.

HB 2104’s fiscal note stated enacting the bill would have no fiscal impact.

There is no further discussion scheduled for HB 2104 as of Feb. 11.