Many states have enacted laws allowing police to take blood by force from any motorist involved in a serious traffic accident, but the second highest Kansas court in Kansas says the practice is unconstitutional. Last Friday, the Court of Appeals rejected the argument that drivers give their "implied consent" to such searches when they accept a driver's license.

A three-judge panel considered the case of Aryanna Declerck who swerved off the road and rolled a Dodge Ram pickup truck on Interstate 470 on November 5, 2011 at 2pm. Declerck was buckled up and survived, but her passenger, Shaylee Oxy, was not. She was ejected from the vehicle and died. The Kansas Highway Patrol officer who arrived on the scene asked Declerck to take a blood test. She refused, and the officer had the blood taken by force without a warrant at Stormont-Vail Hospital. Declerck was subsequently charged with felony manslaughter while driving under the influence of marijuana (DUI).

One witness at the scene, Gregory Roy, testified that there was nothing reckless or unusual about Declerck's driving. Trooper Marcus Seirer concluded Declerck lost control while trying to pass a car and could have been cited for making an unsafe lane change. Marijuana was found in a search of the wrecked truck.

Declerck filed to suppress the blood test evidence on the grounds that the search was made without probable cause. State prosecutors conceded that they lacked cause, but they insisted it was sufficient to cite state law.

"Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent... 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," Section 8-1001 states. "A law enforcement officer shall request a person to submit to a test... 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."

Under the statute, the traffic offense is considered the probable cause for the blood draw. The three-judge appellate panel found that every case cited by the prosecution upholding the implied consent law involved incidents where police had probable cause to believe alcohol or drugs were involved.

"We are acutely aware the statute in question attempts to address the terrible toll impaired drivers inflict on our state's highways, but we are reminded of the 'truism that constitutional protections have costs,'" Judge Anthony J. Powell wrote for the court. "While the state does have a significant interest in preventing accidents involving drugs and alcohol on the road, [this law] does not further that interest. A traffic infraction plus an injury or fatality, without more, does not constitute probable cause that drugs or alcohol were involved in the accident."

The court reasoned that the "implied consent" doctrine also fails because Declerck explicitly withdrew her consent. The court upheld the suppression of the blood test. Alaska, Arizona, Georgia, Illinois, Indiana, Maine, Mississippi and Pennsylvania have found similar blood draw statutes unconstitutional.

A copy of the decision is available in a 135k PDF file at the source link below.