Criminalizing Refusal of Preliminary Screening Device Unconstitutional
The Kansas Court of Appeals ruled in State v. Robinson that laws criminalizing refusing a preliminary screening device (“PBT”) are unconstitutional. A preliminary screening device or preliminary breath test (PBT) is considered a field sobriety test. The PBT is a hand-held device typically offered to drivers or pedestrians when a law enforcement officer suspects the pedestrian has been drinking. It is often offered to drivers at the scene of a car stop when the officer believes the driver may be under the influence. The purpose of this test is to determine if the officer has probable cause to make a DUI arrest.
According to an article published by the KC Star, it is estimated that twenty percent of arrested drunken drivers refuse to take chemical tests. Refusing the PBT has been considered a traffic infraction in Kansas for many years. It typically resulted in a fine. The refusal law was classified either as a misdemeanor or felony, depending on how many times an individual had been charged with violating it. Officers are required to provide warning to the person being tested, which included a warning that refusing to take the PBT was an infraction.
The Court is following the same analysis as the Kansas Supreme Court did in holding that KSA 8-1025 (Refusal of a Breath Test) was unconstitutional. The Court held that a breath test and a PBT are both searches. Thus, the Fourth Amendment applies. A citizen cannot be punished for invoking his or her rights.
If you have been pulled over and refused a preliminary screening device, or you have any questions about what to do to after a DUI arrest feel free to contact me to discuss your options.
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