Many people pulled over in Kansas for driving offenses, including but not limited to driving under the influence (DUI) believe their conduct during the stop and after a subsequent arrest has little impact on the outcome of a subsequent criminal case. This misconception often results in drivers failing to assert their legal rights and essentially volunteering damaging information that is used to obtain a conviction of alcohol or drug-related driving offenses. However, law enforcement officers must have probable cause that an individual has committed a crime before arresting a suspect. Further, the tail cannot wag the dog, which means the officer may not satisfy the probable cause standard for a lawful DUI arrest by relying on evidence obtained subsequent to the actual arrest. The importance of this principle in DUI cases becomes apparent when one considers how it can impact the application of the Kansas implied consent statute.
This statute provides that a driver implies his or her consent to provide a breath, blood or urine sample for blood alcohol concentration (BAC) testing when he or she is lawfully arrest for an alcohol-related offense. This means that the law enforcement officer cannot request that a driver submit to a breath test or other chemical test level if the request is predicated on an arrest for an unrelated driving offense like driving without a license or failure to provide proof of insurance. While the importance of this distinction may not seem immediately apparent to some, this means that the officer may not arrest you for driving on a suspended license, for example, then request a formal DUI BAC test at the police station based on the arrest.
The reason that this is important to you as a Kansas motorist is that this means the officer may not have sufficient evidence to justify a DUI charge unless you provide such evidence. The officer at the scene of a traffic stop will observe your demeanor and note physical characteristics that might suggest alcohol impairment, such as unsteadiness, bloodshot eyes, slurred speech and the odor of alcohol. If the officer cannot gather sufficient evidence from these observations or the officer’s prior observation of your driving to provide probable cause for a DUI arrest, you may be able to reduce the likelihood of a DUI conviction by declining to participate in field sobriety tests including a roadside portable breath test.
If the observations made by the officer at the scene and prior to the stop do not provide sufficient evidence to constitute probable cause for a DUI arrest, you may benefit from refusing field sobriety tests and a portable breath test because your driver’s license cannot be subject to suspension under the Kansas implied consent law for these refusals. Since the officer cannot arrest you for a non-alcohol-related driving offense and require that you submit to BAC chemical testing under the implied consent statute, this may create potential defenses in your DUI case.
Kansas DUI attorney Stacey Schlimmer provides zealous defense of her clients charged with DUI and other alcohol-related driving offenses. Our Johnson County criminal defense law firm offers a confidential free consultation so call us today at 913-219-5424 or contact us online.