Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS
8-1001.Tests for alcohol or drugs; request by
officer, grounds; consent implied; administration of tests, when; procedures;
immunity from liability; duty to provide driver notice; refusal to comply or
test result exceeding limit, license suspension; search warrant, admissibility
of
test; availability of test result; remedial nature of law.
(a) Any person who operates or attempts to operate a vehicle within
this state is deemed to have given consent, subject to the provisions of
this act, 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 deemed consented to herein shall include all
quantitative and qualitative tests for alcohol and drugs. A person who is
dead or unconscious shall be deemed not to have withdrawn the person's
consent to such test or tests, which shall be administered in the manner
provided by this section.
(b) A law enforcement officer shall request a person to submit to a test
or tests deemed consented to under subsection (a): (1) If the officer
has
reasonable grounds to believe the person was operating or attempting to
operate a vehicle while under the influence of alcohol or drugs, or
both, or to believe that 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 was under the age
of 21 years 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 offense involving operation or attempted operation of a vehicle
while under the influence of alcohol or drugs, or both, or for a violation
of K.S.A. 8-1567a, and amendments thereto, or involving 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, in violation of a
state statute or a city ordinance; or (B) the person has been
involved in a
vehicle accident or collision resulting in property damage or
personal injury other than serious injury; or (2) if the person was
operating
or attempting to operate a vehicle and such vehicle has been
involved in an accident or collision resulting in serious injury or
death
of any person
and the
operator could be cited for any traffic offense, as defined in K.S.A. 8-2117,
and amendments
thereto. The traffic offense violation shall constitute probable cause for
purposes of paragraph
(2). The test or tests under paragraph (2) shall not be required if
a law enforcement officer has reasonable grounds to believe the
actions of the operator did not contribute to the accident or collision.
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 accident
investigation or arrest.
(c) If a law enforcement officer requests a person to submit to a test
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's
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
emergency medical technician-intermediate or mobile intensive care technician,
as those terms are defined in K.S.A. 65-6112, and amendments thereto,
authorized by medical protocol or (4) a
phlebotomist.
(d) A law enforcement officer may direct a medical professional
described in this section to draw a sample of
blood from a person:
(1) If the person has given consent and meets the
requirements of subsection (b);
(2) if medically unable to consent, if the person
meets the requirements of paragraph (2) of subsection (b); or
(3) if the person refuses to submit to and complete a
test, if the
person meets the requirements of paragraph (2) of subsection (b).
(e) When so directed by a law enforcement officer through a
written statement, the medical professional shall withdraw
the sample 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 to sign any additional
consent or 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.
(f) 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 provided by law enforcement.
(g) 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.
(h) A law enforcement officer may request a urine sample
upon meeting the requirements of paragraph (1) of subsection (b) and shall
request a urine sample upon meeting the requirements of
paragraph (2) of subsection (b).
(i) If a law enforcement
officer requests a person to submit to a test of urine under this section,
the collection of the urine sample shall be supervised by persons of the
same sex as the person being tested and 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 (d) and (e) shall apply to the collection
of a urine sample.
(j) No law enforcement officer who is acting in accordance
with this
section shall be liable in any civil or criminal proceeding involving the
action.
(k) Before a test or tests are administered under this
section,
the
person shall be given oral and written notice that: (1)
Kansas law
requires the person to submit to and complete one or more tests of breath,
blood or urine to determine if the person is under the influence of alcohol
or drugs, or both;
(2) the opportunity to consent to or refuse a test is
not a constitutional right;
(3) there is no constitutional right to consult
with an attorney regarding whether to submit to testing;
(4) if the person
refuses to submit to and complete any test of breath, blood or urine hereafter
requested by a law enforcement officer, the person's driving privileges will be
suspended for one year for the first occurrence, two
years
for
the
second occurrence, three years for the third occurrence, 10 years for the
fourth occurrence and permanently revoked for a fifth or subsequent
occurrence;
(5) if the person submits to and completes the
test or tests and the test results show for the first occurrence:
(A) An alcohol concentration of .08 or
greater, the person's driving privileges will be
suspended for
30
days for the first occurrence; or
(B) an alcohol concentration of .15 or greater, the person's driving
privileges will be suspended for one year;
(6) if the person submits to and completes the test or tests and the test
results show an alcohol concentration of .08 or greater, the person's driving
privileges will be suspended for one year for the second, third or fourth
occurrence and permanently revoked for a fifth or subsequent occurrence;
(7) if the person is less than 21 years of age at the time
of the
test request and submits to and completes the tests and the test results show
an alcohol concentration of .08 or greater, the person's driving privileges
will
be suspended for one year except the person's driving
privileges will be permanently revoked for a fifth or subsequent
occurrence;
(8) refusal to submit to testing may be used
against the person at any trial on a charge arising out of the operation or
attempted operation of a vehicle while under the influence of alcohol or drugs,
or both;
(9) the results of the testing may be used against the
person at any
trial 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
(10) after
the completion of the testing, the person has the right to consult with an
attorney and may secure additional testing, which, if desired, should be done
as soon as possible and is customarily available from medical care facilities
willing to conduct such testing.
(l) If a law enforcement officer has reasonable grounds 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 reasonable grounds to believe that the
person has been driving or attempting to drive 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.
(m) After giving the foregoing information, a law
enforcement
officer shall request the person to submit to testing. The selection of the
test or tests shall be made by the officer. If the test results show a blood or
breath alcohol
concentration of .08 or greater, the person's driving privileges shall be
subject to suspension, or suspension and restriction, as provided in K.S.A.
8-1002 and 8-1014, and amendments thereto.
(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 reasonable grounds 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 .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 reasonable grounds 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 .08 or greater, 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) An officer shall have probable cause to believe that
the person
operated a vehicle while under the influence of alcohol or drugs, or both, if
the vehicle was operated by such person in such a manner as to have caused the
death of or serious injury to a person. In
such event, such test or tests
may be made pursuant to a search warrant issued under the authority of K.S.A.
22-2502, and amendments thereto, or without a search warrant under the
authority of K.S.A. 22-2501, and amendments thereto.
(q) 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.
(r) It shall not be a defense that the person did not
understand the
written or oral notice required by this section.
(s) No test results shall be suppressed because of
technical
irregularities in the
consent or notice required pursuant to this act.
(t) 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.
(u) 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.
(v) This act is remedial law and shall be liberally
construed to promote
public health, safety and welfare.
(w) As used in this section, "serious injury" means a physical
injury to a person, as determined by law enforcement, which has
the effect of, prior to the request for testing:
(1) Disabling a person from the physical capacity to remove
themselves from the scene;
(2) renders a person unconscious;
(3) the immediate loss of or absence of the normal use of
at least one limb;
(4) an injury determined by a physician to require surgery; or
(5) otherwise indicates the person may die or be permanently
disabled by the injury.
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; July 1.
Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS
8-1001.Tests for alcohol or drugs; request by
officer, grounds; consent implied; administration of tests, when; procedures;
immunity from liability; duty to provide driver notice; refusal to comply or
test result exceeding limit, license suspension; search warrant, admissibility
of
test; availability of test result; remedial nature of law.
(a) Any person who operates or attempts to operate a vehicle within
this state is deemed to have given consent, subject to the provisions of
this act, 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 deemed consented to herein shall include all
quantitative and qualitative tests for alcohol and drugs. A person who is
dead or unconscious shall be deemed not to have withdrawn the person's
consent to such test or tests, which shall be administered in the manner
provided by this section.
(b) A law enforcement officer shall request a person to submit to a test
or tests deemed consented to under subsection (a): (1) If the officer
has
reasonable grounds to believe the person was operating or attempting to
operate a vehicle while under the influence of alcohol or drugs, or
both, or to believe that 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 was under the age
of 21 years 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 offense involving operation or attempted operation of a vehicle
while under the influence of alcohol or drugs, or both, or for a violation
of K.S.A. 8-1567a, and amendments thereto, or involving 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, in violation of a
state statute or a city ordinance; or (B) the person has been
involved in a
vehicle accident or collision resulting in property damage or
personal injury other than serious injury; or (2) if the person was
operating
or attempting to operate a vehicle and such vehicle has been
involved in an accident or collision resulting in serious injury or
death
of any person
and the
operator could be cited for any traffic offense, as defined in K.S.A. 8-2117,
and amendments
thereto. The traffic offense violation shall constitute probable cause for
purposes of paragraph
(2). The test or tests under paragraph (2) shall not be required if
a law enforcement officer has reasonable grounds to believe the
actions of the operator did not contribute to the accident or collision.
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 accident
investigation or arrest.
(c) If a law enforcement officer requests a person to submit to a test
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's
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
emergency medical technician-intermediate or mobile intensive care technician,
as those terms are defined in K.S.A. 65-6112, and amendments thereto,
authorized by medical protocol or (4) a
phlebotomist.
(d) A law enforcement officer may direct a medical professional
described in this section to draw a sample of
blood from a person:
(1) If the person has given consent and meets the
requirements of subsection (b);
(2) if medically unable to consent, if the person
meets the requirements of paragraph (2) of subsection (b); or
(3) if the person refuses to submit to and complete a
test, if the
person meets the requirements of paragraph (2) of subsection (b).
(e) When so directed by a law enforcement officer through a
written statement, the medical professional shall withdraw
the sample 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 to sign any additional
consent or 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.
(f) 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 provided by law enforcement.
(g) 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.
(h) A law enforcement officer may request a urine sample
upon meeting the requirements of paragraph (1) of subsection (b) and shall
request a urine sample upon meeting the requirements of
paragraph (2) of subsection (b).
(i) If a law enforcement
officer requests a person to submit to a test of urine under this section,
the collection of the urine sample shall be supervised by persons of the
same sex as the person being tested and 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 (d) and (e) shall apply to the collection
of a urine sample.
(j) No law enforcement officer who is acting in accordance
with this
section shall be liable in any civil or criminal proceeding involving the
action.
(k) Before a test or tests are administered under this
section,
the
person shall be given oral and written notice that: (1)
Kansas law
requires the person to submit to and complete one or more tests of breath,
blood or urine to determine if the person is under the influence of alcohol
or drugs, or both;
(2) the opportunity to consent to or refuse a test is
not a constitutional right;
(3) there is no constitutional right to consult
with an attorney regarding whether to submit to testing;
(4) if the person
refuses to submit to and complete any test of breath, blood or urine hereafter
requested by a law enforcement officer, the person's driving privileges will be
suspended for one year for the first occurrence, two
years
for
the
second occurrence, three years for the third occurrence, 10 years for the
fourth occurrence and permanently revoked for a fifth or subsequent
occurrence;
(5) if the person submits to and completes the
test or tests and the test results show for the first occurrence:
(A) An alcohol concentration of .08 or
greater, the person's driving privileges will be
suspended for
30
days for the first occurrence; or
(B) an alcohol concentration of .15 or greater, the person's driving
privileges will be suspended for one year;
(6) if the person submits to and completes the test or tests and the test
results show an alcohol concentration of .08 or greater, the person's driving
privileges will be suspended for one year for the second, third or fourth
occurrence and permanently revoked for a fifth or subsequent occurrence;
(7) if the person is less than 21 years of age at the time
of the
test request and submits to and completes the tests and the test results show
an alcohol concentration of .08 or greater, the person's driving privileges
will
be suspended for one year except the person's driving
privileges will be permanently revoked for a fifth or subsequent
occurrence;
(8) refusal to submit to testing may be used
against the person at any trial on a charge arising out of the operation or
attempted operation of a vehicle while under the influence of alcohol or drugs,
or both;
(9) the results of the testing may be used against the
person at any
trial 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
(10) after
the completion of the testing, the person has the right to consult with an
attorney and may secure additional testing, which, if desired, should be done
as soon as possible and is customarily available from medical care facilities
willing to conduct such testing.
(l) If a law enforcement officer has reasonable grounds 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 reasonable grounds to believe that the
person has been driving or attempting to drive 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.
(m) After giving the foregoing information, a law
enforcement
officer shall request the person to submit to testing. The selection of the
test or tests shall be made by the officer. If the test results show a blood or
breath alcohol
concentration of .08 or greater, the person's driving privileges shall be
subject to suspension, or suspension and restriction, as provided in K.S.A.
8-1002 and 8-1014, and amendments thereto.
(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 reasonable grounds 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 .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 reasonable grounds 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 .08 or greater, 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) An officer shall have probable cause to believe that
the person
operated a vehicle while under the influence of alcohol or drugs, or both, if
the vehicle was operated by such person in such a manner as to have caused the
death of or serious injury to a person. In
such event, such test or tests
may be made pursuant to a search warrant issued under the authority of K.S.A.
22-2502, and amendments thereto, or without a search warrant under the
authority of K.S.A. 22-2501, and amendments thereto.
(q) 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.
(r) It shall not be a defense that the person did not
understand the
written or oral notice required by this section.
(s) No test results shall be suppressed because of
technical
irregularities in the
consent or notice required pursuant to this act.
(t) 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.
(u) 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.
(v) This act is remedial law and shall be liberally
construed to promote
public health, safety and welfare.
(w) As used in this section, "serious injury" means a physical
injury to a person, as determined by law enforcement, which has
the effect of, prior to the request for testing:
(1) Disabling a person from the physical capacity to remove
themselves from the scene;
(2) renders a person unconscious;
(3) the immediate loss of or absence of the normal use of
at least one limb;
(4) an injury determined by a physician to require surgery; or
(5) otherwise indicates the person may die or be permanently
disabled by the injury.
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; July 1.
Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS
8-1001.Tests for alcohol or drugs; request by
officer, grounds; consent implied; administration of tests, when; procedures;
immunity from liability; duty to provide driver notice; refusal to comply or
test result exceeding limit, license suspension; search warrant, admissibility
of
test; availability of test result; remedial nature of law.
(a) Any person who operates or attempts to operate a vehicle within
this state is deemed to have given consent, subject to the provisions of
this act, 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 deemed consented to herein shall include all
quantitative and qualitative tests for alcohol and drugs. A person who is
dead or unconscious shall be deemed not to have withdrawn the person's
consent to such test or tests, which shall be administered in the manner
provided by this section.
(b) A law enforcement officer shall request a person to submit to a test
or tests deemed consented to under subsection (a): (1) If the officer
has
reasonable grounds to believe the person was operating or attempting to
operate a vehicle while under the influence of alcohol or drugs, or
both, or to believe that 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 was under the age
of 21 years 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 offense involving operation or attempted operation of a vehicle
while under the influence of alcohol or drugs, or both, or for a violation
of K.S.A. 8-1567a, and amendments thereto, or involving 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, in violation of a
state statute or a city ordinance; or (B) the person has been
involved in a
vehicle accident or collision resulting in property damage or
personal injury other than serious injury; or (2) if the person was
operating
or attempting to operate a vehicle and such vehicle has been
involved in an accident or collision resulting in serious injury or
death
of any person
and the
operator could be cited for any traffic offense, as defined in K.S.A. 8-2117,
and amendments
thereto. The traffic offense violation shall constitute probable cause for
purposes of paragraph
(2). The test or tests under paragraph (2) shall not be required if
a law enforcement officer has reasonable grounds to believe the
actions of the operator did not contribute to the accident or collision.
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 accident
investigation or arrest.
(c) If a law enforcement officer requests a person to submit to a test
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's
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
emergency medical technician-intermediate or mobile intensive care technician,
as those terms are defined in K.S.A. 65-6112, and amendments thereto,
authorized by medical protocol or (4) a
phlebotomist.
(d) A law enforcement officer may direct a medical professional
described in this section to draw a sample of
blood from a person:
(1) If the person has given consent and meets the
requirements of subsection (b);
(2) if medically unable to consent, if the person
meets the requirements of paragraph (2) of subsection (b); or
(3) if the person refuses to submit to and complete a
test, if the
person meets the requirements of paragraph (2) of subsection (b).
(e) When so directed by a law enforcement officer through a
written statement, the medical professional shall withdraw
the sample 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 to sign any additional
consent or 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.
(f) 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 provided by law enforcement.
(g) 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.
(h) A law enforcement officer may request a urine sample
upon meeting the requirements of paragraph (1) of subsection (b) and shall
request a urine sample upon meeting the requirements of
paragraph (2) of subsection (b).
(i) If a law enforcement
officer requests a person to submit to a test of urine under this section,
the collection of the urine sample shall be supervised by persons of the
same sex as the person being tested and 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 (d) and (e) shall apply to the collection
of a urine sample.
(j) No law enforcement officer who is acting in accordance
with this
section shall be liable in any civil or criminal proceeding involving the
action.
(k) Before a test or tests are administered under this
section,
the
person shall be given oral and written notice that: (1)
Kansas law
requires the person to submit to and complete one or more tests of breath,
blood or urine to determine if the person is under the influence of alcohol
or drugs, or both;
(2) the opportunity to consent to or refuse a test is
not a constitutional right;
(3) there is no constitutional right to consult
with an attorney regarding whether to submit to testing;
(4) if the person
refuses to submit to and complete any test of breath, blood or urine hereafter
requested by a law enforcement officer, the person's driving privileges will be
suspended for one year for the first occurrence, two
years
for
the
second occurrence, three years for the third occurrence, 10 years for the
fourth occurrence and permanently revoked for a fifth or subsequent
occurrence;
(5) if the person submits to and completes the
test or tests and the test results show for the first occurrence:
(A) An alcohol concentration of .08 or
greater, the person's driving privileges will be
suspended for
30
days for the first occurrence; or
(B) an alcohol concentration of .15 or greater, the person's driving
privileges will be suspended for one year;
(6) if the person submits to and completes the test or tests and the test
results show an alcohol concentration of .08 or greater, the person's driving
privileges will be suspended for one year for the second, third or fourth
occurrence and permanently revoked for a fifth or subsequent occurrence;
(7) if the person is less than 21 years of age at the time
of the
test request and submits to and completes the tests and the test results show
an alcohol concentration of .08 or greater, the person's driving privileges
will
be suspended for one year except the person's driving
privileges will be permanently revoked for a fifth or subsequent
occurrence;
(8) refusal to submit to testing may be used
against the person at any trial on a charge arising out of the operation or
attempted operation of a vehicle while under the influence of alcohol or drugs,
or both;
(9) the results of the testing may be used against the
person at any
trial 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
(10) after
the completion of the testing, the person has the right to consult with an
attorney and may secure additional testing, which, if desired, should be done
as soon as possible and is customarily available from medical care facilities
willing to conduct such testing.
(l) If a law enforcement officer has reasonable grounds 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 reasonable grounds to believe that the
person has been driving or attempting to drive 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.
(m) After giving the foregoing information, a law
enforcement
officer shall request the person to submit to testing. The selection of the
test or tests shall be made by the officer. If the test results show a blood or
breath alcohol
concentration of .08 or greater, the person's driving privileges shall be
subject to suspension, or suspension and restriction, as provided in K.S.A.
8-1002 and 8-1014, and amendments thereto.
(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 reasonable grounds 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 .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 reasonable grounds 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 .08 or greater, 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) An officer shall have probable cause to believe that
the person
operated a vehicle while under the influence of alcohol or drugs, or both, if
the vehicle was operated by such person in such a manner as to have caused the
death of or serious injury to a person. In
such event, such test or tests
may be made pursuant to a search warrant issued under the authority of K.S.A.
22-2502, and amendments thereto, or without a search warrant under the
authority of K.S.A. 22-2501, and amendments thereto.
(q) 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.
(r) It shall not be a defense that the person did not
understand the
written or oral notice required by this section.
(s) No test results shall be suppressed because of
technical
irregularities in the
consent or notice required pursuant to this act.
(t) 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.
(u) 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.
(v) This act is remedial law and shall be liberally
construed to promote
public health, safety and welfare.
(w) As used in this section, "serious injury" means a physical
injury to a person, as determined by law enforcement, which has
the effect of, prior to the request for testing:
(1) Disabling a person from the physical capacity to remove
themselves from the scene;
(2) renders a person unconscious;
(3) the immediate loss of or absence of the normal use of
at least one limb;
(4) an injury determined by a physician to require surgery; or
(5) otherwise indicates the person may die or be permanently
disabled by the injury.
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; July 1.