KS: Forced blood draw of driver requires PC to believe driver under influence; accident alone not enough

Defendant was in an accident, and the state took her blood. The state conceded a lack of probable cause to believe that defendant was operating a vehicle under the influence. The Kansas statute authorizing a blood test solely because of being in an accident, without more, violates the Fourth Amendment. The court refuses to follow a similar Oklahoma case as having an “unsatisfying” analysis, instead following the weight of authority. A driver’s consent under Kansas’ implied consent statute, without more, does not constitute valid consent under the Fourth Amendment. The good faith exception as the state’s alternative fails for lack of proof of good faith. State v. Declerck, 2014 Kan. App. LEXIS 5 (February 7, 2014):

Moreover, every other state to consider this question, such as Alaska, Arizona, Georgia, Illinois, Indiana, Maine, Mississippi, and Pennsylvania, has found statutes similar to K.S.A. 2012 Supp. 8-1001(b) unconstitutional. See, e.g., State v. Blank, 90 P.3d 156, 161-62 (Alaska 2004) (interpreted statute similar to K.S.A. 2011 Supp. 8-1001[b][2] to incorporate requirements of Schmerber); State v. Quinn, 218 Ariz. 66, 68, 178 P.3d 1190 (Ct. App. 2008) (statute cannot authorize blood draw following traffic accident involving serious injury or fatality absent probable cause driver impaired); Cooper v. State, 277 Ga. 282, 291, 587 S.E.2d 605 (2003) (“[T]o the extent [the statute] requires chemical testing of the operator of a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities regardless of any determination of probable cause, it authorizes unreasonable searches and seizures in violation of the State and Federal Constitutions.”); King v. Ryan, 153 Ill. 2d 449, 463-64, 607 N.E.2d 154 (1992) (officer needs more than probable cause driver partially at fault for death or injury accident to request blood test; probable cause driver under the influence required); Hannoy v. State, 789 N.E.2d 977, 992 (Ind. App. 2003) (law enforcement may forcibly obtain blood sample from driver without warrant or consent but only when they have probable cause to believe driver was intoxicated); State v. Roche, 681 A.2d 472, 472 n.1, 475 (Me. 1996) (statute prohibits use of evidence from administrative blood draw in criminal prosecution unless [*21] State can establish independent probable cause driver impaired at time of accident); McDuff v. State, 763 So. 2d 850, 855 (Miss. 2000) (“[T]he tragic fact that a fatality arises out of a motor vehicle accident is in no way, standing alone, an indicator that alcohol or drugs were involved.”); Com. v. Kohl, 532 Pa. 152, 164, 615 A.2d 308 (1992) (drawing blood sample pursuant to implied consent law from driver who had been involved in automobile accident violated Fourth Amendment when driver was not under arrest and no probable cause driver was operating vehicle under the influence).

In light of this overwhelming and persuasive authority, we must conclude K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional to the extent it requires a search and seizure absent probable cause the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol. 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.” Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). While the State does have a significant interest in preventing accidents involving drugs and alcohol on the road, K.S.A. 2011 Supp. 8-1001(b)(2) does not further that interest. See Hannoy, 789 N.E.2d at 984 (special needs exception inapplicable where search performed by law enforcement or for law enforcement purposes); McDuff, 763 So. 2d at 855 (statute with public safety and law enforcement purpose does not fall within special needs exception); see also State v. Childs, 275 Kan. 338, 347, 64 P.3d 389 (2003) (exclusive sanction for highly regulated business refusing entry to law enforcement is license revocation). A traffic infraction plus an injury or fatality, without more, does not constitute probable cause that drugs or alcohol were involved in the accident.