In the past, the Kansas Department of Revenue had ruled that a driver could not rescind or void the refusal of a breast test more than once. In attorney Harvell’s case, their client was a smoker and she could not blow hard or long enough to effectively deliver a sufficient breath sample for the Intoxilyzer 8000.
The Overland Park police officer that made the arrest believed the defendant was attempting to circumvent the chemical test and therefore refused her request to take another breath test. The District Court judge did not agree with the police officer’s theory, nor did the judge interpret Kansas law as not allowing the driver another opportunity to blow into the breath testing device.
In the State of Kansas vs. May, No. 102, 248, the Supreme Court of Kansas recently addressed whether a driver could rescind a deficient breath sample; the state ruled that a deficient sample could be rescinded.
In State vs. May, the court ruled that a person who is physically capable of providing a sample but fails to provide an accurate sample shall be treated as someone who refused to take the test.
State vs. May also stated that an initial refusal to take a breathalyzer test, including an inadequate breath sample may be changed or rescinded if the person changes their mind, or subsequently consents to submit to a breath test. However, there are certain requirements in order for a person to provide their consent after refusing: 1) they must provide their consent within a short time after refusing, 2) and when the second test is still accurate, 3) when the testing equipment is still available and close at hand, 4) when honoring the request won’t incur any additional expense or inconvenience for the police, and 5) when the person has remained in custody and under observation of the arresting officer since the arrest.
After the firm presented a compelling argument, the judge ultimately ruled in favor of their client. The defendant was extremely pleased with the outcome of the case because a deficient is the same as a chemical test refusal under Kansas law; she was also facing a two year driver’s license suspension if she was convicted. The consequences of a two year’s driver’s license suspension was especially a cause for concern because the defendant frequently travels for her job and needs her license in order to rent vehicles when travelling out of state.
An interesting piece of information is that the Intoxilyzer 8000 has the capability of measuring the volume of a breath test to determine how hard a person is blowing into the device; however, the Kansas Department of Health had declined that valuable option.
The primary reason why the firm won this case is actually because of the media equipment used by the firm to hear the off-camera conversation being exchanged between the angry officer and their client. Once better speakers were used, the firm was able to hear the arresting officer telling the driver to stop blowing as the machine was giving a standby tone.
Under Statue 8-1001 (k)(4) of the Kansas Statutes, if the person refuses to submit or complete any blood, breath, or urine test after requested by a law enforcement officer, then their driving privileges will be suspended for one full year on the first occurrence, two years on the second occurrence and beyond. Therefore, getting the judge to rule in their client’s favor saved her from a lengthy license suspension, which would have certainly affected her job and her livelihood.
The Law Office of John E. Harvell, P.A. is a criminal defense law firm in Olathe, Kansas. Attorney John Harvell has been assisting clients in Olathe and Johnson County for over 20 years in their criminal defense needs, and as a former prosecutor and judge, he has the knowledge and experience to fight for his clients’ rights or help clear their criminal record through an expungement. Attorney Harvell is AV® rated by Martindale-Hubbell®