House votes to criminalize DUI test refusals

TOPEKA – After a lengthy discussion of constitutional rights, the House has approved a bill that makes it a crime for suspected repeat offenders to refuse a drunk-driving test.

The same bill would also allow first-time DUI offenders and those whose licenses are suspended for other reasons to use small motor scooters to get around.

Under Senate Bill 60, drivers with a DUI conviction or prior refusal of a DUI test would automatically be guilty of a misdemeanor if they refuse a test. The penalty would be the same as for a DUI conviction.

The House passed the bill 103-13, but not without some concerns expressed by members that it “tramples” the right to remain silent when accused of a crime.

Rep. Sean Gatewood, D-Topeka, said he’s seen many drunk driving crashes and the harm they cause working as a firefighter and paramedic.

But he said he was not comfortable with making it a crime to refuse to take a breath or blood test.

“These are American citizens and they have the right to remain silent, which this bill sort of tramples on, because if you just stand there silent … then you’re a criminal,” Gatewood said. “You have your 4th and 5th Amendment rights … and I just think there is no greater ridge to stand on than the Constitution of the United States.”

Gatewood proposed to send the measure back to a House-Senate conference committee for further work, but that motion died on a 23-88 vote.

Rep. Pat Colloton, R-Leawood, who carried the bill on the floor, acknowledged that its impact on constitutional rights was an important issue, but on balance she supported it.

She said courts are being clogged with repeat offenders who refuse the DUI test and take their chances with a jury.

“The district attorney and county attorney association said the No. 1 use of their attorneys for jury trials were on DUI refusals,” Colloton said. “It was using a tremendous amount of manpower throughout the state for jury trials on those people who had multiple convictions for DUI and were smart in refusing to have a DUI test.”

“The alcoholic was well aware of the tactic of refusing and we wanted to stop that,” Colloton added.

Some lawmakers said stopping drunk drivers outweighed the constitutional questions.

“I would gladly walk the line, breathe into the tube and draw my blood if it would get repeat drunk drivers off the road,” said Rep. Bill Otto, R-LeRoy. “This is about people who are killing people.”

“This is not about constitutional rights,” he continued. “What about the constitutional right to life, liberty and the pursuit of happiness? (a phrase from the Declaration of Independence, not the Constitution) When you’re killed by a drunk driver, they’ve deprived you of your life. Death penalty, when you did nothing wrong.”

Senate Bill 60 also includes a Wichita judge’s idea for giving motorists with suspended licenses a way to get around without driving.

The provision allows drivers with a single DUI or multiple suspensions for unpaid tickets or other issues to obtain a special license that would allow them to operate what the law calls “motorized bicycles.”

The main problem is that many people whose licenses are suspended still need to get to work, and in parts of the state without public transit, have no choice but to risk driving without a license, said Sedgwick County District Court Judge Phil Journey.

Journey proposed the provision when he was a state senator and who testified in support of it this year.

The problem is especially acute for low-income workers who lose their license because they can’t afford to pay a fine. They get caught multiple times and the penalties keep escalating, Journey said.

It’s costly for them and for taxpayers, who have to pay for multiple prosecutions and in some cases, jail time, Journey said.

The definition of a motorized bicycle includes mopeds and scooters of less than 50 cubic centimeters of engine displacement, less than 3.5 horsepower and automatic shifting. Such bikes usually weigh 180-200 pounds and can only go about 30-35 mph.

“The odds of getting hurt by someone on a moped are pretty slim,” Journey said.

Other provisions of the bill would:

• Require cities to turn over money from enhanced DUI fines to the state. Last year, the Legislature added $250 to DUI penalties to fund community corrections. About 40 percent of the DUI prosecutions are done in city-run municipal courts and the cities have been keeping the extra fine money because last year’s DUI law didn’t specify they had to give it up.

• Allow first-time DUI offenders to drive their employers’ company cars without an ignition interlock required on personal vehicles. The interlock prevents operation of the car unless the driver can blow a clean breath sample into the device.

The bill is expected to go to the Senate on Friday, where it is expected to pass easily.