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8-1001. Tests for alcohol or drugs; request by officer, grounds; administration of tests, when; procedures; immunity from liability; duty to provide driver notice; refusal to comply or test result exceeding limit, license suspension; admissibility and availability of test result; remedial nature of law. (a) Any person who operates or attempts to operate a vehicle within this state may be requested, subject to the provisions of this article, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing shall include all quantitative and qualitative tests for alcohol and drugs. The test must be administered at the direction of a law enforcement officer, and the law enforcement officer shall determine which type of test is to be conducted or requested.

(b) (1) One or more tests may be required of a person when, at the time of the request, a law enforcement officer has probable cause to believe the person has committed a violation of K.S.A. 8-1567(a), and amendments thereto, or to believe the person was driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system, or to believe the person is under the age of 21 years and was operating or attempting to operate a vehicle while having alcohol or other drugs in such person's system; and one of the following conditions exists: (A) The person has been arrested or otherwise taken into custody for any violation of any state statute, county resolution or city ordinance; or (B) the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury or death.

(2) The law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the investigation or arrest.

(c) When requesting a test or tests of breath or other bodily substance other than blood or urine, under this section, the person shall be given oral and written notice that:

(1) There is no right to consult with an attorney regarding whether to submit to testing, but, after the completion of the testing, the person may request and has the right to consult with an attorney and may secure additional testing;

(2) if the person refuses to submit to and complete the test or tests, the person's driving privileges will be suspended for a period of one year;

(3) if the person fails a test, the person's driving privileges will be suspended for a period of either 30 days or one year;

(4) refusal to submit to testing may be used against the person at any trial or hearing on a charge arising out of the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both; and

(5) the results of the testing may be used against the person at any trial or hearing on a charge arising out of the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.

(d) When requesting a test or tests of blood or urine, under this section, the person shall be given oral and written notice that:

(1) If the person refuses to submit to and complete the test or tests, the person's driving privileges will be suspended for a period of one year;

(2) if the person fails a test, the person's driving privileges will be suspended for a period of either 30 days or one year;

(3) the results of the testing may be used against the person at any trial or hearing on a charge arising out of the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both; and

(4) after the completion of the testing, the person may request and has the right to consult with an attorney and may secure additional testing.

(e) Nothing in this section shall be construed to limit the right of a law enforcement officer to conduct any search of a person's breath or other bodily substance, other than blood or urine, incident to a lawful arrest pursuant to the constitution of the United States, with or without providing the person the advisories authorized in subsection (c), nor limit the admissibility at any trial or hearing of alcohol or drug concentration testing results obtained pursuant to such a search.

(f) Nothing in this section shall be construed to limit the right of a law enforcement officer to conduct or obtain a blood or urine test of a person pursuant to a warrant under K.S.A. 22-2502, and amendments thereto, the constitution of the United States or a judicially recognized exception to the search warrant requirement, with or without providing the person the advisories authorized in subsection (d), nor limit the admissibility at any trial or hearing of alcohol or drug concentration testing results obtained pursuant to such a search.

(g) A law enforcement officer may direct a medical professional, as described in subsection (h), to draw one or more samples of blood from a person to determine the blood's alcohol or drug concentration:

(1) If the person has given consent, with or without the advisories in subsection (d), and meets the requirements of subsection (b);

(2) if law enforcement has obtained a search warrant authorizing the collection of blood from the person; or

(3) if the person refuses or is unable to consent to submit to and complete a test, and another judicially recognized exception to the warrant requirement applies.

(h) If a law enforcement officer is authorized to collect one or more tests of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by: (1) A person licensed to practice medicine and surgery, licensed as a physician assistant, or a person acting under the direction of any such licensed person; (2) a registered nurse or a licensed practical nurse; (3) any qualified medical technician, including, but not limited to, an advanced emergency medical technician or a paramedic, as those terms are defined in K.S.A. 65-6112, and amendments thereto, authorized by medical protocol; or (4) a phlebotomist.

(i) When so directed by a law enforcement officer through a written statement, the medical professional shall withdraw the sample of blood as soon as practical and shall deliver the sample to the law enforcement officer or another law enforcement officer as directed by the requesting law enforcement officer as soon as practical, provided the collection of the sample does not jeopardize the person's life, cause serious injury to the person or seriously impede the person's medical assessment, care or treatment. The medical professional authorized herein to withdraw the blood and the medical care facility where the blood is drawn may act on good faith that the requirements have been met for directing the withdrawing of blood once presented with the written statement provided for under this subsection. The medical professional shall not require the person that is the subject of the test or tests to provide any additional consent or sign any waiver form. In such a case, the person authorized to withdraw blood and the medical care facility shall not be liable in any action alleging lack of consent or lack of informed consent.

Such sample or samples shall be an independent sample and not be a portion of a sample collected for medical purposes. The person collecting the blood sample shall complete the collection portion of a document, if provided by law enforcement.

(j) If a person must be restrained to collect the sample pursuant to this section, law enforcement shall be responsible for applying any such restraint utilizing acceptable law enforcement restraint practices. The restraint shall be effective in controlling the person in a manner not to jeopardize the person's safety or that of the medical professional or attending medical or health care staff during the drawing of the sample and without interfering with medical treatment.

(k) If a law enforcement officer is authorized to collect one or more tests of urine, the collection of the urine sample shall be supervised by: (1) A person licensed to practice medicine and surgery, licensed as a physician assistant, or a person acting under the direction of any such licensed person; (2) a registered nurse or a licensed practical nurse; or (3) a law enforcement officer of the same sex as the person being tested. The collection of the urine sample shall be conducted out of the view of any person other than the persons supervising the collection of the sample and the person being tested, unless the right to privacy is waived by the person being tested. When possible, the supervising person shall be a law enforcement officer. The results of qualitative testing for drug presence shall be admissible in evidence and questions of accuracy or reliability shall go to the weight rather than the admissibility of the evidence. If the person is medically unable to provide a urine sample in such manner due to the injuries or treatment of the injuries, the same authorization and procedure as used for the collection of blood in subsections (g) and (i) shall apply to the collection of a urine sample.

(l) No law enforcement officer who is acting in accordance with this section shall be liable in any civil or criminal proceeding involving the action.

(m) If a law enforcement officer has probable cause to believe that the person has been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system, the person shall also be provided the oral and written notice pursuant to K.S.A. 8-2,145, and amendments thereto. Any failure to give the notices required by K.S.A. 8-2,145, and amendments thereto, shall not invalidate any action taken as a result of the requirements of this section. If a law enforcement officer has probable cause to believe that the person has been operating or attempting to operate a vehicle while having alcohol or other drugs in such person's system and such person was under 21 years of age, the person also shall be given the notices required by K.S.A. 8-1567a, and amendments thereto. Any failure to give the notices required by K.S.A. 8-1567a, and amendments thereto, shall not invalidate any action taken as a result of the requirements of this section.

(n) The person's refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.

(o) If a law enforcement officer had probable cause to believe the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, and the test results show a blood or breath alcohol concentration of 0.04 or greater, the person shall be disqualified from driving a commercial motor vehicle, pursuant to K.S.A. 8-2,142, and amendments thereto. If a law enforcement officer had probable cause to believe the person had been driving any motor vehicle, the person fails a test, as defined in K.S.A. 8-1013(h), and amendments thereto, or the person refuses a test, the person's driving privileges shall be subject to suspension, or suspension and restriction, pursuant to this section, in addition to being disqualified from driving a commercial motor vehicle pursuant to K.S.A. 8-2,142, and amendments thereto.

(p) Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.

(q) It shall not be a defense that the person did not understand the written or oral notice authorized by this section.

(r) No test results shall be suppressed because of irregularities not affecting the substantial rights of the accused in the consent or notice authorized pursuant to this act. Failure to provide any or all of the notices set forth in subsection (c) or (d) shall not be an issue or defense in any action other than an administrative action regarding the subject's driving privileges.

(s) Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant or other judicially recognized exception to the warrant requirement.

(t) Upon the request of any person submitting to testing under this section, a report of the results of the testing shall be made available to such person when available.

(u) This act is remedial law and shall be liberally construed to promote public health, safety and welfare.

History: L. 1955, ch. 61, § 1; L. 1967, ch. 60, § 1; L. 1973, ch. 41, § 1; L. 1977, ch. 38, § 4; L. 1978, ch. 36, § 1; L. 1982, ch. 144, § 3; L. 1985, ch. 48, § 3; L. 1985, ch. 50, § 1; L. 1986, ch. 40, § 2; L. 1988, ch. 47, § 13; L. 1990, ch. 47, § 1; L. 1991, ch. 36, § 18; L. 1993, ch. 259, § 1; L. 1993, ch. 275, § 1; L. 1994, ch. 353, § 9; L. 1999, ch. 169, § 1; L. 2001, ch. 200, § 12; L. 2005, ch. 172, § 2; L. 2006, ch. 173, § 1; L. 2007, ch. 181, § 3; L. 2008, ch. 170, § 1; L. 2010, ch. 119, § 13; L. 2011, ch. 105, § 9; L. 2012, ch. 172, § 12; L. 2013, ch. 122, § 2; L. 2014, ch. 131, § 1; L. 2018, ch. 106, § 7; L. 2019, ch. 13, § 1; July 1.

Cross References to Related Sections:

Preliminary screening test of breath, see 8-1012.

Law Review and Bar Journal References:

Act discussed, James H. Rexroad, 24 J.B.A.K. 232 (1956).

"The Kansas Experience with Uniform State Laws," Paul L. Wilbert, 6 K.L.R. 338, 342 (1958).

Appeals to district court, Frederick Woleslagel, 29 J.B.A.K. 318, 319 (1962).

Consent aspect discussed in note, 9 K.L.R. 449-451 (1961).

Illegally seized evidence (Mapp v. Ohio) in criminal cases, Paul E. Wilson, 11 K.L.R. 423, 433 (1963).

Revocation of a driver's license is mandatory for refusing the chemical test, 30 J.B.A.K. 140 (1961); 10 K.L.R. 489 (1962)[both citing a February 20, 1961 opinion of the attorney general].

Act discussed, opinion of attorney general, 8 K.L.R. 499 (1960).

Constitutionality of K.S.A. 8-259, Marion Beatty, 35 J.B.A.K. 15 (1966).

Traffic cases and license problems, William M. Ferguson, 39 J.B.A.K. 351, 355, 399 (1970).

Admissibility of evidence in DWI cases, 13 W.L.J. 113, 115 (1974).

Note concerning search and seizure, 25 K.L.R. 268, 269 (1977).

"Survey of Kansas Law: Criminal Law and Procedure," Keith G. Meyer, 27 K.L.R. 391, 403 (1979).

"Constitutional Law: Due Process Requires No Hearing Before Suspension of Driver's License," Stephen Jackson Soule, 19 W.L.J. 338, 343 (1980).

"S.B. 699—A Comment on Kansas' New 'Drunk Driving' Law," Joseph Brian Cox and Donald G. Strole, 51 J.K.B.A. 230, 237 (1982).

"The New Kansas DUI Law: Constitutional Issues and Practical Problems," Gerard Little, Jr., 22 W.L.J. 340, 341, 344, 345, 348, 349 (1983).

"The New Kansas Drunk Driving Law: A Closer Look," Matthew D. Keenan, 31 K.L.R. 409, 410, 411, 414, 419, 422 (1983).

"Survey of Kansas Law: Criminal Law," Robert A. Wason, 32 K.L.R. 395 (1984).

"Criminal Law: Rescinding Initial Refusals to Submit to Blood Alcohol Tests," Glen Peter Ahlers, 24 W.L.J. 386 (1985).

"Constitutional Law: Compelled Surgical Intrusions Restricted by the Fourth Amendment [Winston v. Lee, 105 S.Ct. 1611 (1985)]," Christina L. Medeiros Morris, 25 W.L.J. 123, 128, 129 (1985).

"Right to Counsel in DUI Investigations," Emil A. Tonkovich, 54 J.K.B.A. 32 (1985).

"Overview of DUI Defense," John P. Gerstle, 11 J.K.T.L.A. No. 2, 16 (1987).

"The Decisive Blow to The Double Jeopardy Defense In Kansas Drunk Driving Prosecutions: State v. Mertz," Todd A. LaSala, 44 K.L.R. 1009 (1996).

"2001 Legislative Wrap-Up," Paul T. Davis, 70 J.K.B.A. No. 7, 14 (2001).

"Workers Compensation Review," Jan L. Fisher, Editor, J.K.T.L.A. Vol. XXVI, No. 5, 18 (2003).

"Packing Heat: The Personal and Family Protection Act," Mary D. Feighny, 76 J.K.B.A. No. 4, 21 (2007).

"Don't Hold Your Breath: Kansas's Criminal Refusal Law Is on a Collision Course with the U.S. Constitution," Taryn Alexandra Locke, 52 W.L.J. 289 (2013).

Attorney General's Opinions:

Motor vehicle operator's refusal to submit to blood-alcohol test; revocation of license hearings. 82-33.

Effect on DUI prosecutions instituted before effective date of amendments. 82-169.

Maximum speed limits; certain violations not matters of public records; disclosure of records. 85-7.

Search warrants; use in municipal courts. 86-148.

Doctors of chiropractic cannot use the term "chiropractic physician." 87-42.

Tests for alcohol or drugs; who may administer. 87-64.

Obstruction of legal process or official duty; refusal of emergency medical technician to draw blood at law enforcement officer's request. 94-151.

Driving under influence of alcohol or drugs by persons under 21; proceedings for determining violation; filing abstracts of court records; penalties. 97-69.

Conditions wherein peace officer can obtain warrantless extraction of blood after subject has refused to submit to blood test. 2002-26.

CASE ANNOTATIONS

1. Cited; city ordinance prohibiting driving under influence upheld. City of Garden City v. Miller, 181 Kan. 361, 365, 311 P.2d 306.

2. Test hereunder not prerequisite to prosecution for driving while intoxicated; purpose of act. State v. Barry, 183 Kan. 792, 796, 797, 332 P.2d 549.

3. Result of test properly admitted as evidence; presumption. City of Wichita v. Showalter, 185 Kan. 181, 182, 341 P.2d 1001.

4. Suspension and revocation proceedings reviewed; valid; act constitutional exercise of police power. Lee v. State, 187 Kan. 566, 567, 569, 571, 572, 358 P.2d 765.

5. Statute imposes no limitation in use of test to criminal actions; evidence admissible in civil action, when. Williams v. Hendrickson, 189 Kan. 673, 676, 371 P.2d 188.

6. Result of criminal prosecution not to be considered at license revocation hearing. Marbut v. Motor Vehicle Department, 194 Kan. 620, 622, 623, 400 P.2d 982.

7. Driving while under influence; duty of arresting officer to explain consequences of refusal to submit to blood test. Hazlett v. Motor Vehicle Department, 195 Kan. 439, 441, 442, 443, 407 P.2d 551.

8. Petitioner's failure to submit to blood test; reasonableness only issue on appeal under K.S.A. 8-259(a). Lira v. Billings, 196 Kan. 726, 727, 728, 730, 414 P.2d 13.

9. Court may reverse or affirm suspension for refusal, not alter. Beckley v. Motor Vehicle Department, 197 Kan. 289, 290, 291, 416 P.2d 750.

10. D.W.I. alone insufficient to imply malice necessary for manslaughter. State v. Jensen, 197 Kan. 427, 446, 417 P.2d 273.

11. Considered; blood alcohol test inadmissible; failure to lay foundation. State v. Foster, 198 Kan. 52, 55, 422 P.2d 964.

12. Request that person submit to blood alcohol test not violation of constitutional rights. State v. Walker, 199 Kan. 508, 513, 430 P.2d 268.

13. Report of arresting officer hereunder is basis for revocation of license; mandatory that report be sworn to or subsequent revocation proceedings are void. Wilcox v. Billings, 200 Kan. 654, 655, 656, 657, 658, 659, 438 P.2d 108.

14. "Love of life" presumption differs materially from statutory presumption of intoxication. Akin v. Estate of Hill, 201 Kan. 306, 311, 440 P.2d 585.

15. Blood alcohol test held inadmissible; section applies only when driver arrested or taken into custody; involuntary manslaughter conviction reversed. State v. Brunner, 211 Kan. 596, 603, 507 P.2d 233.

16. Statute held to be valid exercise of police power; no infringement of due process. Popp v. Motor Vehicle Department, 211 Kan. 763, 764, 765, 766, 767, 508 P.2d 991.

17. Referred to in holding evidence of refusal of handwriting exemplar properly admitted; outside scope of constitutional privilege. State v. Haze, 218 Kan. 60, 62, 542 P.2d 720.

18. Blood sample taken by deputy coroner held taken without consent of defendant; inadmissible. State v. Gordon, 219 Kan. 643, 647, 549 P.2d 886.

19. Test operator not required to inform person tested of rights to independent test. City of Shawnee v. Gruss, 2 Kan. App. 2d 131, 134, 576 P.2d 239.

20. Cited and applied; order of trial court suppressing results of breath test reversed; implied consent given hereunder applicable to unconscious or incapacitated driver. State v. Garner, 227 Kan. 566, 567, 568, 570, 571, 608 P.2d 1321.

21. Statute inapplicable where driver incapable of a knowing, intelligent, free and voluntary response to request to submit to alcohol test; breath sample lawfully obtained and admissible. State v. Garner, 3 Kan. App. 2d 697, 698, 699, 700, 600 P.2d 1166.

22. No statutory requirement that arresting officer inform motorist of right to refuse blood test; defendant did not refuse the test and even though defendant "unarrested;" results of blood test admissible. State v. Mezins, 4 Kan. App. 2d 292, 293, 294, 605 P.2d 159.

23. Statute operative only after arrest or otherwise taken into custody. State v. Williams, 4 Kan. App. 2d 651, 653, 610 P.2d 111.

24. Terms "operate" and "drive" are synonymous. State v. Fish, 228 Kan. 204, 207, 208, 209, 612 P.2d 180.

25. Statutory right to refuse chemical breath test prohibits admission of refusal to take same; prejudicial effect of admission of refusal outweighs probative value. State v. Wilson, 5 Kan. App. 2d 130, 132, 613 P.2d 384.

26. Safeguards built into statute do not require state to automatically furnish accused with breath sample for independent testing. State v. Young, 228 Kan. 355, 359, 363, 614 P.2d 441.

27. Admission of evidence of refusal to take blood alcohol test not violation of U.S. or Kansas constitution; accused not entitled to explanation of significance of refusing test. State v. Compton, 233 Kan. 690, 692, 693, 694, 695, 664 P.2d 1370 (1983).

28. Statute, being integral part of whole subject of act, not violative of Kansas Constitution, Article 2, § 16. State v. Reves, 233 Kan. 972, 973, 980, 666 P.2d 1190 (1983).

29. Division of vehicles required to issue subpoenas to compel arresting officer and relevant witnesses to testify on question of refusing blood chemical test and reasonableness thereof. Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 242, 671 P.2d 547 (1983).

30. Enhancement of sentence under K.S.A. 8-1567(d) requires succeeding offenses be committed after conviction for preceding offense. State v. Osoba, 234 Kan. 443, 445, 672 P.2d 1098 (1983).

31. If blood test, regardless of compliance with DWI statutes, is taken under appropriate conditions, results are admissible in civil action. Divine v. Groshong, 235 Kan. 127, 133, 679 P.2d 700 (1984).

32. Initial refusal to take test may be rescinded; rules governing subsequent consent outlined; right to counsel not required prior to blood test. Standish v. Department of Revenue, 235 Kan. 900, 902, 903, 904, 683 P.2d 1276 (1984).

33. Driving under influence statute (K.S.A. 8-1567) not vague nor denial of equal protection or ex post facto. State v. Campbell, 9 Kan. App. 2d 474, 477, 681 P.2d 679 (1984).

34. Two-hour lapse from driving time to blood test goes to weight, not admissibility, of evidence. State v. Armstrong, 236 Kan. 290, 689 P.2d 897 (1984).

35. No right to counsel before submitting to or refusing blood-alcohol test, purpose of implied consent law reviewed. State v. Bristor, 236 Kan. 313, 314, 319, 322, 691 P.2d 1 (1984).

36. Before statute invoked, both arrest and request to submit to test must be made; test administered only with consent. State v. Pitchford, 10 Kan. App. 2d 293, 295, 697 P.2d 896 (1985).

37. Affidavit, per se, insufficient to support suspension of license; constitutional requirements not met. Carson v. Division of Vehicles, 237 Kan. 166, 174, 175, 699 P.2d 447 (1985).

38. Cited; suppression of blood alcohol test results and statutory presumption substantially impair state's case. State v. Hunninghake, 238 Kan. 155, 156, 157, 708 P.2d 529 (1985).

39. Cited; vehicular homicide (K.S.A. 21-3405), DUI (K.S.A. 8-1567) convictions; intoxylizer test procedures, independent test (K.S.A. 8-1004) discussed. State v. McNaught, 238 Kan. 567, 582, 713 P.2d 457 (1986).

40. Prior to 1985 amendment, failure to verify chemical test refusal report on oath per K.S.A. 54-101 et seq. invalidated challenged suspension. Dewey v. Kansas Dept. of Revenue, 11 Kan. App. 2d 72, 713 P.2d 490 (1986).

41. Refusal to take breath test not reasonable if based on belief breathalyzer machine malfunctioning. In re Appeal of Ball, 11 Kan. App. 2d 216, 719 P.2d 750 (1986).

42. Cited in opinion in holding no lien created under K.S.A. 58-201 by reference to other statutes. Hartford Ins. Co. v. Overland Body Tow, Inc., 11 Kan. App. 2d 373, 375, 724 P.2d 687 (1986).

43. Driver's silence when requested to submit to test may constitute refusal to submit to test. In re Hamstead, 11 Kan. App. 2d 527, 529, 729 P.2d 461 (1986).

44. Cited; admission of blood sample not contaminated by transfusion admissible in murder prosecution. State v. McKibben, 239 Kan. 574, 583, 722 P.2d 518 (1986).

45. Application of statute before and after 1985 amendments examined. State v. Louis, 240 Kan. 175, 727 P.2d 483 (1986).

46. Refusal to submit to blood tests (f) does not permit issuance of search warrants for blood samples subsection (g). State v. Adee, 241 Kan. 825, 833, 740 P.2d 611 (1987).

47. Admissibility of blood alcohol test performed with consent but without notices contained in K.S.A. 8-1001(f)(1) examined. State v. Doeden, 12 Kan. App. 2d 245, 738 P.2d 876 (1987).

48. Cited; "reasonable opportunity" to have additional alcohol concentration test (K.S.A. 8-1004) examined. State v. George, 12 Kan. App. 2d 649, 652, 754 P.2d 460 (1988).

49. Station officer can act on reasonable grounds of officer at accident without knowing information forming basis thereof. Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 768, 758 P.2d 226 (1988).

50. Blood testing done by hospital for medical history, diagnosis and treatment of defendant not subject to notice requirements herein. State v. Hickey, 12 Kan. App. 2d 781, 786, 757 P.2d 735 (1988).

51. Reasonableness of refusal to take requested breath alcohol test not an issue for department of revenue or district court. Woodhead v. Kansas Dept. of Revenue, 13 Kan. App. 2d 145, 147, 765 P.2d 167 (1988).

52. Notice provisions concerning driver's right to independent test are mandatory, not directory; substantial compliance sufficient. Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 (1988).

53. Statute does not require that driver be informed of right to take alcohol content test after refusing same. Ramirez v. Kansas Dept. of Revenue, 13 Kan. App. 2d 332, 334, 336, 770 P.2d 490 (1989).

54. Notice to defendant of right to secure additional blood testing does not include obligation to ask if test desired. State v. Kristek, 14 Kan. App. 2d 77, 79, 781 P.2d 1113 (1989).

55. Fact defendant did not understand required notices in (f)(1)(B) no defense for refusal to submit. Buchanan v. Kansas Dept. of Revenue, 14 Kan. App. 2d 169, 171, 788 P.2d 285 (1990).

56. Proper remedy for violating right to counsel in (f)(1)(E) is suppression of breath test; invoking right examined. State v. Kelly, 14 Kan. App. 2d 182, 192, 786 P.2d 623 (1990).

57. Failure to inform accused of notice provisions herein requires suppression of blood/alcohol test results; retroactive effect of ruling stated. State v. Luft, 248 Kan. 911, 913, 811 P.2d 873 (1991).

58. What constitutes a "traffic offense" as defined in K.S.A. 8-2117(d) examined; driving with suspended license (K.S.A. 8-262) held not within definition. State v. Frazier, 248 Kan. 963, 971, 811 P.2d 1240 (1991).

59. Two-hour limitation in K.S.A. 8-1567(a)(2) does not apply to administrative suspensions resulting from test failure under implied consent provisions. Podrebarac v. Kansas Dept. of Revenue, 15 Kan. App. 2d 383, 387, 807 P.2d 1327 (1991).

60. "Reasonable grounds" equated with "probable cause"; suspension of license following refusal to consent to test examined. Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705, 706, 815 P.2d 566 (1991).

61. Refusal of DUI test by arrestee examined. Lund v. Kansas Department of Revenue, 16 Kan. App. 2d 265, 266, 267, 824 P.2d 211 (1992).

62. Failure to comply with and give notice required by section divests state of authority to suspend driver's license. Meigs v. Kansas Dept. of Revenue, 16 Kan. App. 2d 537, 538, 541, 825 P.2d 1175 (1992).

63. Introduction of evidence of defendant's refusal to perform field sobriety tests not a violation of 5 th Amendment. State v. Rubik, 16 Kan. App. 2d 585, 587, 827 P.2d 771 (1992).

64. Substantial compliance with notice provisions examined; advising that suspension of at least six months imposed for refusing test insufficient. Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 840 P.2d 448 (1992).

65. Cited in holding that specific statutory authority not a prerequisite to stop a vehicle at sobriety checkpoint. Davis v. Kansas Dept. of Revenue, 252 Kan. 224, 843 P.2d 260 (1992).

66. Denial of right to consult attorney after breath test, test results and other evidence suppressed. Ostmeyer v. Kansas Dept. of Revenue 16 Kan. App. 2d 639, 642, 643, 644, 827 P.2d 780 (1992).

67. What constitutes completed breath test, inadequate sample due to physical inability caused by medical condition examined. Call v. Kansas Dept. of Revenue, 17 Kan. App. 2d 79, 80, 831 P.2d 970 (1992).

68. Drunken condition preventing completion of preparatory requirements of agreed-to breathalyzer test constitutes refusal. McRoberts v. Kansas Dept. of Revenue, 17 Kan. App. 2d 680, 682, 843 P.2d 280 (1992).

69. Cited; discussion of "verified on oath v. merely signing a DUI report." Double S, Inc. v. Northwest Kansas Prod. Cred. Ass'n, 17 Kan. App. 2d 740, 743, 843 P.2d 741 (1992).

70. Upon facts of case, phlebotomist not a "qualified medical technician" authorized to draw blood for blood-alcohol content. City of Salina v. Martin, 18 Kan. App. 2d 284, 285, 849 P.2d 1010 (1993).

71. Cited where court examined district court's de novo review of administrative hearing regarding license suspension. Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 326, 851 P.2d 1385 (1993).

72. Cited in holding personal service requirement of notice of suspension in K.S.A. 8-1002(c) is mandatory; "substantial compliance" not sufficient. Anderson v. Kansas Dept. of Revenue, 18 Kan. App. 2d 347, 349, 853 P.2d 69 (1993).

73. Department of revenue not required to establish certification of standard solution used to calibrate breath testing equipment. Lincoln v. Kansas Dept. of Revenue, 18 Kan. App. 2d 635, 856 P.2d 1357 (1993).

74. Whether a finding defendant was operating vehicle is required before suspension provisions applicable examined. Furthmyer v. Kansas Dept. of Revenue, 19 Kan. App. 2d 591, 593, 595, 873 P.2d 1365 (1994).

75. Whether K.S.A. 8-1002 five-day certification requirement may be challenged at KDR administrative license suspension hearing examined. Schulz v. Kansas Dept. of Revenue, 19 Kan. App. 2d 665, 667, 877 P.2d 1 (1994).

76. Whether use of preprinted notice form with inaccurate blood alcohol limit constitutes insubstantial compliance examined. State v. Branscum, 19 Kan. App. 2d 836, 838, 877 P.2d 458 (1994).

77. Whether KDR breath test refusal sanctions apply where officer has reasonable belief driver attempted to operate vehicle examined. Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 828, 835, 888 P.2d 832 (1995).

78. Whether blood test results requested by defendant's physician in vehicular homicide case are subject to physician-patient privilege examined. State v. Mendoza, 20 Kan. App. 2d 541, 543, 889 P.2d 1147 (1995).

79. Civil administrative sanction of driver's license suspension for DUI violation does not constitute punishment for double jeopardy purposes. State v. Mertz, 258 Kan. 745, 748, 907 P.2d 847 (1995).

80. Breath test requests are not limited to motorists arrested for alcohol or drug offenses impairing driver's ability. State v. Counseller, 22 Kan. App. 2d 155, 156, 912 P.2d 757 (1996).

81. Savings clause contained in (f)(4) applies only to commercial motor vehicle operators. State v. Bunker, 260 Kan. 564, 920 P.2d 405 (1996).

82. Statute held to not violate due process rights of defendant alleging lack of proficiency in English. Kim v. Kansas Dept. of Revenue, 22 Kan. App. 2d 319, 320, 916 P.2d 47 (1996).

83. Mandatory notice provision of (f)(1) considered in voiding license suspension under K.S.A. 40-3118. State v. Adkins, 24 Kan. App. 2d 337, 340, 945 P.2d 880 (1997).

84. Federal law of implied consent applied to sobriety check point conducted on military base. U.S. v. Dillon, 983 F. Supp. 1037, 1040 (1997).

85. Officer provided adequate notice concerning implied breath consent advisory to deaf mute suspect. State v. Bishop, 264 Kan. 717, 720, 957 P.2d 369 (1998).

86. Police officer's comments to suspect did not constitute coercion concerning right to independent alcohol test. State v. Chastain, 265 Kan. 16, 19, 960 P.2d 756 (1998).

87. Expert opinion concerning better alcohol testing procedure not relevant to issue of administrative driver's license suspension. Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 184, 959 P.2d 940 (1998).

88. Breath testing procedures provided for in section do not violate suspect's due process rights. Campbell v. Kansas Dept. of Revenue, 25 Kan. App. 2d 430, 962 P.2d 1150 (1998).

89. Hospital's requirement that suspect sign an additional waiver to draw blood did not require suppression of evidence. State v. Beam, 25 Kan. App. 2d 735, 736, 971 P.2d 752 (1998).

90. Minor errors in officer's certification did not support suppression of evidence of driver's refusal to submit to breath test. Madison v. Kansas Dept. of Revenue, 25 Kan. App. 2d 760, 761, 969 P.2d 259 (1998).

91. Defendant may not claim collateral estoppel based on dismissal of criminal charge in municipal court in administrative suspension of license action before DOR as two public agencies not in privity; collateral estoppel exception justified because of disparity between the quality and extensiveness of criminal and administrative procedures. Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 458, 459, 464, 980 P.2d 1022 (1999).

92. Section allows preparation and service of a second certification and notice of suspension form to correct errors or omissions. Enslow v. Kansas Dept. of Revenue, 26 Kan. App. 2d 953, 955, 996 P.2d 361 (2000).

93. Full and complete execution of Department of Revenue form DC-27 not required as foundation for admission of blood alcohol test results; other competent testimony, or combination thereof, will suffice. State v. Baker, 269 Kan. 383, 2 P.3d 494 (2000).

94. Arrest not required prior to warrantless extraction of blood if extraction is based on probable cause sufficient to justify an arrest. State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001).

95. K.S.A. 8-1001 and 8-1567a are not in conflict; K.S.A. 8-1567a applies only to drivers under age 21 with blood alcohol concentration of .02 to .08 percent. Aten v. Kansas Dept. of Revenue, 29 Kan. App. 2d 30, 22 P.3d 1077 (2001).

96. Sufficient evidence to support trial court's conclusion that defendant willfully failed to blow into breath test machine. Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 32 P.3d 705 (2001).

97. Defendant's consent to urinalysis was coerced as he was improperly advised he would lose his driver's license. State v. Conn, 278 Kan. 387, 400, 99 P.3d 1108 (2004).

98. DUI conviction vacated as defendant was not permitted to contact an attorney after submitting to blood test. City of Dodge City v. Wipf, 33 Kan. App. 2d 51, 99 P.3d 635 (2004).

99. Preliminary breath test requires deep lung breath and is a search subject to constitutional protection; implied consent provisions of K.S.A. 8-1001 do not apply to K.S.A. 8-1012. State v. Jones, 270 Kan. 71, 106 P.3d 1 (2005).

100. Trial court justified in considering defendant's refusal to submit to intoxilyzer test. State v. Huff, 33 Kan. App. 2d 942, 111 P.3d 659 (2005).

101. Cited, defendant's request for blood test not clearly made. City of Dodge City v. Ibarra, 35 Kan. App. 2d 643, 647, 648, 133 P.3d 159 (2006).

102. Provisions of this section are remedial and thus liberally construed to promote public health, safety, and welfare. Martin v. Kansas Dept. of Revenue, 36 Kan. App. 2d 561, 566, 142 P.3d 735 (2006).

103. Substantial compliance with subsection (f) where written notice placed in conscious driver's hand and oral notice given. Thompson v. Kansas Dept. of Revenue, 37 Kan. App. 2d 255, 258, 259, 152 P.3d 106 (2007).

104. Result of second breath test admissible where officer gave implied consent advisories, got consent, then, gave test. State v. Shaw, 37 Kan. App. 2d 485, 493, 154 P.3d 524 (2007).

105. No constitutional right to an attorney prior to submitting to breath test but statutory rights exists after test. State v. Tedder, 38 Kan. App. 2d 142, 143, 163 P.3d 311 (2007).

106. The notice provisions of K.S.A. 8-1001(f) are mandatory, not directory. State v. Kogler, 38 Kan. App. 2d 159 to 164, 163 P.3d 330 (2007).

107. K.S.A. 8-1001 et seq. is remedial law and shall be liberally construed to promote public health, safety and welfare. Ashley v. Kansas Dept. of Revenue, 38 Kan. App. 2d 421, 166 P.3d 1060 (2007).

108. Cited; circumstances provided reasonable suspicion to investigate DUI; suppression motion denied. State v. Pollman, 286 Kan. 881, 895, 190 P.3d 234 (2008).

109. Cited in involuntary manslaughter while driving under the influence of alcohol; instruction on intervening cause discussed. State v. Bale, 39 Kan. App. 2d 655, 658, 182 P.3d 1280 (2008).

110. Cited; permitting evidence of refusal to take blood or breath test does not violate fourth or fifth amendment. State v. Bussart-Savaloja, 40 Kan. App. 2d 918, 926 to 929, 198 P.3d 163 (2008).

111. Under K.S.A. 77-614 a petition for judicial review requires petitioner's reasons for relief, not factual bases. Rebel v. Kansas Dept. of Revenue, 288 Kan. 419, 204 P.3d 551 (2009).

112. Ten-day limit for filing petition for review per K.S.A. 8-259 applies to every order of suspension issued pursuant to K.S.A. 8-1001 et seq. Moser v. Kansas Dept. of Revenue, 289 Kan. 513, 213 P.3d 1061 (2009).

113. DUI conviction reversed; a preliminary breath testing device must be approved under K.S.A. 65-1,107 before law enforcement use. State v. Pollman, 41 Kan. App. 2d 20, 204 P.3d 630 (2009).

114. Breath test failed to substantially comply with KDHE protocol. Mitchell v. Kansas Dept. of Revenue, 41 Kan. App. 2d 114, 200 P.3d 496 (2009).

115. Persons authorized by K.S.A. 8-1001 to draw blood discussed; medical assistant, under stipulated facts, held authorized. State v. Stegman, 41 Kan. App. 2d 568, 203 P.3d 52 (2009).

116. Conviction under K.S.A. 8-1567 upheld; court reviews reasonableness of blood draw. State v. Davis, 41 Kan. App. 2d 1034, 207 P.3d 281 (2009).

117. K.S.A. 8-1001 is analyzed and applied; suppression of second refusal reversed because proper notices given. State v. Bradley, 42 Kan. App. 2d 104, 208 P.3d 788 (2009).

118. Lifetime suspension of a commercial driver's license upheld despite the misinformation given by a law enforcement officer. Cuthbertson v. Kansas Dept. of Revenue, 42 Kan. App. 2d 1049, 220 P.3d 379 (2009).

119. Driver's rescission of prior refusal to consent to a breath test was timely. McIntosh v. Kansas Dept. of Revenue, 291 Kan. 41, 237 P.3d 1243 (2010).

120. Officer had reasonable grounds to believe that the driver had been driving under the influence of alcohol under facts of the case. Poteet v. Kansas Dept. of Revenue, 43 Kan. App. 2d 412, 233 P.3d 286 (2010).

121. Service by mail achieved based on substantial compliance doctrine despite technical irregularities. Byrd v. Kansas Dept. of Revenue, 43 Kan. App. 2d 145, 221 P.3d 1168 (2010).

122. Driver has the initial evidentiary burden to show that the person who drew his blood was not qualified. Henke v. Kansas Dept. of Revenue, 45 Kan. App. 2d 8, 246 P.3d 408 (2010).

123. Conditions necessary to request an implied consent testing not met; driving privileges reinstated. Shrader v. Kansas Dept. of Revenue, 45 Kan. App. 2d 216, 247 P.3d 681 (2011).

124. Reasonable grounds for requesting a breath test found under the facts of case. Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 256 P.3d 845 (2011).

125. Defendant effected a valid rescission of her constructive test refusal; suppression of both the evidence of a test refusal and the evidence of the deficient breath sample test result. State v. May, 293 Kan. 858, 269 P.3d 1260 (2012).

126. An arrest for driving with a suspended license is not an alcohol-related arrest, as required under implied consent law to suspend licensure for breath test refusal. Shrader v. Kansas Dept. of Revenue, 296 Kan. 3, 290 P.3d 549 (2012).

127. A lawful arrest must be made before an arresting officer is authorized to request a breath test. Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012).

128. The phrases "within this state" and "in this state" do not include roadways in the Prairie Band Potawatomie reservation. Rodewald v. Kansas Dept. of Revenue, 296 Kan. 1022, 297 P.3d 281 (2013).

129. The state need not make an additional showing of probable cause plus exigent circumstances in order to use the test results as evidence. State v. Johnson, 297 Kan. 210, 301 P.3d 287 (2013).

130. Defendant's right to consult with an attorney is not deprived under the facts of the case. State v. Richmeier, 49 Kan. App. 2d 691, 313 P.3d 99 (2013).

131. The subsection (b)(2) is held unconstitutional to the extent it requires a search and seizure absent probable cause. State v. Declerck, 49 Kan. App. 2d 908, 317 P.3d 794 (2014).

132. Objectively reasonable law enforcement officer would not necessarily know statute was unconstitutional; an officer could rely in good faith upon the statute to authorize a search prior to notice of statute's invalidity. State v. Meitler, 51 Kan. App. 2d 308, 314, 347 P.3d 670 (2015).

133. Officer's failure to inform defendant that statutory penalty for repeat DUI offenses was more severe than for first-time DUI offenses violated notice requirements of section, rendering evidence of test refusal inadmissible and constituting reversible error. City of Overland Park v. Lull, 51 Kan. App. 2d 588, 594-95, 349 P.3d 1278 (2015).

134. The right to consult with an attorney after completion of drug or alcohol testing may be invoked by a driver prior to testing; the appropriate remedy for a violation of this right is suppression of testing results. Dumler v. Kansas Dep't of Revenue, 302 Kan. 421, 426, 354 P.3d 519 (2015).

135. Officer's threat to obtain warrant for blood test and subsequent consent to breath test was constitutionally justified after defendant initially refused breath test. City of Dodge City v. Webb, 305 Kan. 351, 358, 381 P.3d 464 (2016).

136. Statute criminalizing a suspect's right to withdraw consent implied by operation of K.S.A. 8-1001 and to refuse to submit to testing is not narrowly tailored to serve a compelling state interest and thus violates the due process clause of the 14 th amendment to the United States constitution and is facially unconstitutional. State v. Kraemer, 52 Kan. App. 2d 686, 696, 371 P.3d 954 (2016).

137. Considering the Kansas supreme court decision in State v. Ryce, 306 Kan. 682, 396 P.3d 711 (2017) (holding K.S.A. 8-1025 facially unconstitutional), the informed consent advisory in section inaccurately advises a suspect that the suspect may be criminally charged for refusal to submit to a blood alcohol content, rendering the suspect's consent coerced and involuntary. State v. Nece, 306 Kan. 679, 680-81 (2017).

138. The term "evidentiary test" on a form is sufficient to distinguish a post-arrest breath test from a preliminary breath test. Creecy v. Kansas Dep't of Revenue, 310 Kan. 454, 473, 447 P.3d 959 (2019).

139. The DC-70 form revised in February 2016 substantially complied with the provisions of section. Sandate v. Kansas Dept. of Revenue, 58 Kan. App. 2d 450, 471 P.3d 700 (2020).

140. Suppression of breath test evidence obtained prior to July 1, 2018, was proper remedy where officer did not provide person with implied consent advisories before administering test. City of Colby v. Foster, 58 Kan. App. 2d 464, 471 P.3d 26 (2020).


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