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8-1012. Preliminary screening test of breath or oral fluid; request by officer, reasonable suspicion; use of results of test; additional tests; approved devices. (a) A law enforcement officer may request a person who is operating or attempting to operate a vehicle within this state to submit to a preliminary screening test of the person's breath or oral fluid, or both, if the officer has reasonable suspicion to believe the person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both alcohol and drugs.

(b) If the person submits to the test, the results shall be used for the purpose of assisting law enforcement officers in determining whether an arrest should be made and whether to request the tests authorized by K.S.A. 8-1001, and amendments thereto. A law enforcement officer may arrest a person based in whole or in part upon the results of a preliminary screening test. Such results shall not be admissible in any civil or criminal action concerning the operation of or attempted operation of a vehicle except to aid the court or hearing officer in determining a challenge to the validity of the arrest or the validity of the request to submit to a test pursuant to K.S.A. 8-1001, and amendments thereto. Following the preliminary screening test, additional tests may be requested pursuant to K.S.A. 8-1001, and amendments thereto.

(c) Any preliminary screening of a person's breath shall be conducted with a device approved pursuant to K.S.A. 65-1,107, and amendments thereto. Any preliminary screening of a person's oral fluid shall be conducted in accordance with rules and regulations, if any, approved pursuant to K.S.A. 75-712h, and amendments thereto.

History: L. 1986, ch. 40, § 1; L. 1993, ch. 259, § 4; L. 2005, ch. 172, § 3; L. 2006, ch. 173, § 2; L. 2006, ch. 211, § 1; L. 2011, ch. 105, § 12; L. 2012, ch. 172, § 14; L. 2019, ch. 13, § 2; April 18.

Cross References to Related Sections:

List of approved screening devices, see 65-1,107.

Breath tests, unlawful acts, see 65-1,109.

Law Review and Bar Journal References:

"Evidentiary Ideas in Defending Driving Under the Influence Charges," Timothy G. Riling, J.K.T.L.A. Vol. XX, No. 1, 20 (1996).

"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:

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

CASE ANNOTATIONS

1. Statutory authority of police to conduct preliminary alcohol screening of person's breath constitutional. Gross v. Kansas Dept. of Revenue, 26 Kan. App. 2d 847, 849, 994 P.2d 666 (2000).

2. Charge of refusal to submit to PBT hereunder was properly dismissed but court erred in dismissing DUI charge under K.S.A. 8-1567. State v. Gray, 270 Kan. 793, 18 P.3d 962 (2001).

3. Provision that arrest may be made solely or in part on results of preliminary breath test is not significant interference by legislature with judicial function. State v. Chacon-Bringuez, 28 Kan. App. 2d 625, 18 P.3d 970 (2001).

4. Defendant consented to breath test for blood alcohol; section does not punish for prior drinking but provides negative consequence for refusal of test. City of Kingman v. Lubbers, 31 Kan. App. 2d 426, 65 P.3d 1075 (2003).

5. 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, 279 Kan. 71, 106 P.3d 1 (2005).

6. Legislature did not intend for preliminary breath test refusal to be admissible to prove DUI; no clear error in not having limiting instruction where evidence of DUI guilt was overwhelming. State v. Wahweotten, 36 Kan. App. 2d 568, 577, 143 P.3d 58 (2006).

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

8. 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).

9. Sufficient facts justify officer's request for PBT of driver; officer's failure to provide proper notice shall not be defense in any action. State v. Edgar, 45 Kan. App. 2d 340, 246 P.3d 1013 (2011).

10. Officer's statement to a defendant that he had no right to refuse the test transformed the test into an involuntary search. State v. Edgar, 296 Kan. 513, 294 P.3d 251 (2013).

11. In a driving under the influence case, district court erred by allowing state to rely on scientifically unproven horizontal gaze nystagmus test to establish reasonable suspicion permitting officer to request defendant submit to a preliminary breath test. City of Wichita v. Molitor, 301 Kan. 251, 264, 341 P.3d 1275 (2015).

12. Section is unconstitutional because it criminalizes an individual's withdrawal of consent to a search and is not narrowly tailored to serve a compelling state interest. State v. Robinson, 55 Kan. App. 2d 209, 218-23, 410 P.3d 923 (2017).

13. Although Robinson found it unconstitutional to impose a criminal penalty for refusing to submit to a breath test, a court can consider refusal as part of the reasonable grounds analysis, and an officer may draw a negative inference from a refusal. Forrest v. Kansas Dept. of Revenue, 56 Kan. App. 2d 121, 128, 425 P.3d 624 (2018).


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